Tana v Asmara Entertainment Limited t/a Asmara Restaurant (Employment and Labour Relations Appeal E234 of 2024) [2025] KEELRC 2029 (KLR)
The bottom line
#A Kenyan court ruled that overtime claims must be filed within 12 months of leaving a job, while a certificate of service is an absolute right.
What this practically means
#Executive summary
#Key legal issues
#Whether overtime is a continuing injury subject to the 12-month limitation under section 89 of the Employment Act
Yes - the overtime claim, though proved, was statute-barred as it was filed outside 12 months of the resignation
The court relied on The German School Society & another v Ohany, which adopted the Supreme Court of India's reasoning in M. R. Gupta on continuing wrongs giving rise to recurring causes of action. Overtime is wages due during employment and awardable as back pay, so it falls under the continuing injury limb of section 89, requiring filing within 12 months of cessation. The claimant resigned on 19th August 2019 and filed on 30th October 2020, outside the 12-month period.
Whether the claimant was entitled to leave pay and service pay
No - the leave forms proved leave was taken, and service pay is unavailable to an employee covered by NSSF
The leave forms produced by the respondent were admitted without objection, their content was not challenged in cross-examination, and they showed leave was taken throughout, including 2019. On service pay, the respondent's witness testified unchallenged that NSSF and NHIF were deducted and paid, and under section 35(5) and (6) service pay is barred for members of a registered pension scheme like NSSF. The court upheld the trial court's findings on both heads.
Whether the claimant was entitled to a certificate of service and costs
Yes - the certificate of service is an unqualified statutory right and was not issued; the claimant was entitled to costs of the suit
Section 51 of the Employment Act makes issuance of a certificate of service an unqualified right on separation, and RW1 confirmed it was not issued. Because the respondent breached section 51, it was not entitled to costs; the court interfered with the trial court's decision on costs to that limited extent, awarding costs of the suit to the claimant while each party bears their own costs of the appeal.
Legal principles established
#- Overtime constitutes wages due to the employee during employment, awardable as back pay, hence a continuing injury which must be sought in court within 12 months of termination under section 89 of the Employment Act
- Issuance of a certificate of service is an unqualified right of the employee upon separation with the employer under section 51 of the Employment Act
- A first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions while making due allowance for not having seen or heard the witnesses
Court orders
#- 1.Appeal allowed on the issue of costs only
- 2.Judgment of the Honourable Hosea M. Ng'ang'a delivered on 15th July 2024 in CMEL Cause No. E1066 of 2020 set aside and replaced with judgment entered for the claimant for issuance of a certificate of service under section 51 of the Employment Act
- 3.Costs of the suit awarded to the claimant
- 4.Each party to bear own costs in the appeal
- On appeal from
- Chief Magistrates Court at Nairobi
- CMEL Cause No. E1066 of 2020
- Jurisdiction invoked
- First appellate jurisdiction over the Chief Magistrates Court in an employment cause
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tana v Asmara Entertainment Limited t/a Asmara Restaurant (Employment and Labour Relations Appeal E234 of 2024) [2025] KEELRC 2029 (KLR)", Case Analysis (2025). CMEL Cause No. E1066 of 2020 (appeal thereof). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2029/eng@2025-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.