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ELRCDismissedNairobi MCELRC Appeal from MCELRC No. E077 of 2023· [2025] KEELRC 2022 (KLR)

Sumbati v Aqua Plumbing Company Limited (Appeal E032 of 2025) [2025] KEELRC 2022 (KLR)

Employment and Labour Relations Court
4 July 2025
JKJ.W. Keli
4,081 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a caretaker's appeal, confirming that underpayment claims must be filed within twelve months of losing your job or they expire.

What this practically means

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Executive summary

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The Appellant, a caretaker dismissed by redundancy effective 25 September 2020, appealed against the decision of Hon. L. Ambasi, Chief Magistrate in Nairobi MCELRC No. E077 of 2023, which had partly allowed his claim and awarded Kshs. 55,000/- comprising one month's pay in lieu of notice (Kshs. 10,000), three months' compensation for unlawful termination (Kshs. 30,000) and severance pay (Kshs. 15,000), all computed on his actual salary of Kshs. 10,000. The Appellant sought re-computation of all awards on the minimum wage for a caretaker under the Regulation of Wages (General) (Amendment) Order 2018 (Kshs. 28,147.60 plus 15% housing allowance, totalling Kshs. 32,369.74), together with underpayments, salary arrears, unpaid leave and leave travelling allowance. The Respondent argued the appeal was time-barred and that the trial court correctly applied actual salary, relying on Phanice Ayoma Seru v Chemserve Cleaning Service Ltd. The court framed two issues: whether the appeal was proper, and whether terminal dues were correctly calculated. On timeliness, applying Order 50 rule 4 of the Civil Procedure Rules, the court held the vacation period (21 December to 13 January) was excluded, making the 4 February 2025 filing timely. On the merits, although the court acknowledged that it is illegal to pay below the prescribed minimum wage and noted the trial court did not explain its failure to apply the wages order, it upheld the use of actual salary because the underpayment claim had lapsed twelve months after termination under section 90 of the Employment Act, following Phanice Ayoma Seru. The appeal was dismissed, the magistrate's judgment upheld, each party ordered to bear its own costs, a 30-day stay of execution granted, and the file closed.

Key legal issues

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01

Whether the appeal was time-barred

Holding

The appeal was validly filed within time because the court vacation period (21 December to 13 January) is excluded from computation of time under Order 50 rule 4 of the Civil Procedure Rules

Reasoning

Judgment was delivered on 18 December 2024; time stopped running on 20 December 2024 due to the vacation exclusion. Recomputed, the deadline fell on or before 8 February 2025, and the memorandum of appeal dated 31 January 2025 was filed on 4 February 2025, hence within time.

p. 6
02

Whether terminal dues should be computed on the minimum wage for a caretaker rather than actual salary

Holding

The appeal failed; the trial court was upheld in applying the last salary paid, because the underpayment claim was time-barred under section 90 of the Employment Act as a claim accruing monthly but caught by the 12-month limitation after cessation

Reasoning

Although the court acknowledged it is illegal to pay below the prescribed minimum wage, the appellant's underpayment claim lapsed twelve months after termination. The court adopted Phanice Ayoma Seru v Chemserve Cleaning Service Ltd, where continuing-injury claims filed belatedly failed as time-barred, justifying computation of notice pay, compensation and severance on the actual salary.

p. 8

Legal principles established

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  • A first appellate court must reconsider the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses
  • Where no period of appeal is specified, an appeal from a magistrate's court must be filed within thirty days of the decision, and time between 21st December and 13th January is excluded from computation
  • It is illegal for an employer to pay an employee less than the prescribed minimum wages
  • Claims of underpayment, salary underpayments and similar continuing injuries must be filed within twelve months of cessation of employment under section 90 of the Employment Act

Court orders

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  1. 1.The appeal is dismissed; the judgment and decree of Hon. L. Ambasi, Chief Magistrate delivered on 18 December 2024 in Nairobi MCELRC No. E077 of 2023 is upheld
  2. 2.Each party to bear their own costs in the appeal
  3. 3.Stay of execution of 30 days is granted
  4. 4.The file is marked as closed

Authorities

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Legislation

  • Employment Actsections 3?, 9, 10, 20, 25, 40(1)(f), 40(1)(g), 49(1)(c), 74, 90
  • Regulation of Wages (General) (Amendment) Order 2018minimum wage for a caretaker; section 3 (Basic minimum wage), First/Second/Third Schedules
  • Labour Institutions Act No. 12 of 2007housing allowance at 15%
  • Employment and Labour Relations Court (Procedure) Rules, 2024Rule 12(2)
  • Civil Procedure RulesOrder 50 rule 4
  • Civil Procedure ActSection 79G

Cases cited (3)

  • Selle v Associated Motor Boat Co.
    [1968] EA 123
  • Mbogo v Shah
    [1968] EA Page 93
  • Phanice Ayoma Seru v Chemserve Cleaning Service Ltd
    [2018] KEELRC 626 (KLR)
On appeal from
Chief Magistrate's Court (ELRC, Nairobi)
MCELRC No. E077 of 2023
Jurisdiction invoked
First appellate jurisdiction over a magistrate's court decision (Employment and Labour Relations Court (Procedure) Rules, 2024, Rule 12(2))

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Sumbati v Aqua Plumbing Company Limited (Appeal E032 of 2025) [2025] KEELRC 2022 (KLR)", Case Analysis (2025). Nairobi MCELRC Appeal from MCELRC No. E077 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2022/eng@2025-07-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.