Gathuthi Tea Factory v Kaguru (Employment and Labour Relations Appeal E022 of 2024) [2025] KEELRC 1368 (KLR)
The bottom line
#Kenya's Employment Court confirmed that employees claiming overtime, leave pay or unremitted NSSF deductions must prove them with evidence — courts won't assume employers are at fault.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the award of damages granted by the trial court should be disturbed
Key legal issues
#Whether the appellate court should disturb the trial court's award of pro-rata leave, overtime and unremitted NSSF deductions
Yes - the awards were perverse, lacked pleaded particulars and evidentiary support; appeal allowed and claim dismissed
Applying Selle v Associated Motor Boat Co Ltd and Peters v Sunday Post, the first appellate court may re-evaluate evidence. The 69 leave days were never pleaded; payslips showed leave paid pro-rata. Overtime and NSSF claims rested on the trial court wrongly shifting the burden of proof to the employer, while schedules and payslips showed payment and remittance.
Whether the burden of proof can shift to the employer absent prima facie evidence from the claimant
No - the party alleging overtime work or non-remittance must prove it
The trial court awarded overtime and NSSF dues because the employer had not tendered proof of payment or remittance. The court held this reversed the legal burden of proof; the claimant alleging the facts bore the burden of pleading particulars (73 months) and adducing evidence.
Legal principles established
#- A first appellate court may re-evaluate evidence and disturb findings of fact that are perverse or unsupported by pleadings and evidence
- The burden of proving overtime work and non-remittance of statutory deductions lies on the employee claiming them
Court orders
#- 1.Appeal allowed
- 2.Trial court's judgment set aside and substituted with an order dismissing the respondent's statement of claim
- 3.Appellant awarded costs of the appeal and the court below plus interest at court rates
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court
- Jurisdiction invoked
- First appellate jurisdiction over the trial Magistrate's judgment in an employment claim (Employment and Labour Relations Court)
Relief refused
#Respondent's claims for pro-rata leave, overtime and unremitted NSSF deductions as awarded by the trial court
Claims lacked pleaded particulars and supporting evidence; burden of proof wrongly shifted to the employer
Costs
The appellant is awarded costs of the appeal and the court below plus interest at court rates.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
A finding of fact by the trial court that does not fiow from the pleadings and evidence is perverse and may occasion miscarriage of justice, and is therefore amenable to interference by the appellate court.
The burden of proof was on the party alleging that he worked overtime. He was the one bound to adduce evidence to prove that he worked overtime and the employer failed to compensate him. Without such prima facie evidence the burden of proof cannot shift to the employer.
Consequently, I allow the appeal, set aside the trial court’s judgment and substitute it with an order dismissing the respondent’s statement of claim. The appellant is also awarded costs of the appeal and the court below plus interest at court rates.
Issues in the judgment
#The judgment inconsistently refers to the respondent's gender, using both female and male pronouns
The judgment reverses the party labels, describing the appellant as having been employed by the respondent
Relief sought in the lower court pleaded NSSF dues for 'seventy-seven (73) months' - inconsistent number of months
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gathuthi Tea Factory v Kaguru (Employment and Labour Relations Appeal E022 of 2024) [2025] KEELRC 1368 (KLR)", Case Analysis (2025). ELRC Appeal at Nyeri. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1368/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.