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ELRCPartially AllowedCMEL Cause No. E1066 of 2020 (appeal thereof)· [2025] KEELRC 2029 (KLR)

Tana v Asmara Entertainment Limited t/a Asmara Restaurant (Employment and Labour Relations Appeal E234 of 2024) [2025] KEELRC 2029 (KLR)

Employment and Labour Relations Court
4 July 2025
4,641 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Machakos against the judgment of the Honourable Hosea M. Ng'ang'a at the Chief Magistrates Court at Nairobi delivered on 15th July 2024 in CMEL Cause No. E1066 of 2020, dismissing a claimant's claim for terminal dues of Kshs. 571,615/= upon resignation from employment. The claim had comprised leave pay (Kshs. 49,500), public holidays worked (Kshs. 19,500), service pay (Kshs. 34,615) and overtime (Kshs. 468,000), plus a certificate of service under section 51 of the Employment Act. The court, applying Selle v Associated Motor Boat Co., re-evaluated the evidence. It found the trial court erred in determining the voluntariness of the resignation, which was not in issue, the only issue being terminal dues. The court declined leave pay, finding unchallenged leave forms proved leave was taken, and declined service pay because NSSF membership bars it under section 35(5) and (6). Overtime, though proved on a balance of probabilities, was held to be a continuing injury claim statute-barred under section 89 of the Employment Act, following The German School Society v Ohany and M. R. Gupta; the suit filed on 30th October 2020 fell outside 12 months of the 19th August 2019 resignation. The public holidays claim was not proved. The certificate of service, an unqualified statutory right that was never issued, was awarded. The appeal was allowed on costs only: the trial judgment was set aside and replaced with judgment for the claimant for issuance of a certificate of service, costs of the suit to the claimant, and each party to bear their own costs in the appeal.

Key legal issues

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01

Whether overtime is a continuing injury subject to the 12-month limitation under section 89 of the Employment Act

Holding

Yes - the overtime claim, though proved, was statute-barred as it was filed outside 12 months of the resignation

Reasoning

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.

p. 8
02

Whether the claimant was entitled to leave pay and service pay

Holding

No - the leave forms proved leave was taken, and service pay is unavailable to an employee covered by NSSF

Reasoning

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.

p. 5
03

Whether the claimant was entitled to a certificate of service and costs

Holding

Yes - the certificate of service is an unqualified statutory right and was not issued; the claimant was entitled to costs of the suit

Reasoning

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.

p. 9

Legal principles established

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  • 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

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  1. 1.Appeal allowed on the issue of costs only
  2. 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. 3.Costs of the suit awarded to the claimant
  4. 4.Each party to bear own costs in the appeal

Authorities

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Legislation

  • Employment Act, 2007Section 51
  • Employment Act, 2007Section 74(1)(f) and 74(f)
  • Employment Act, 2007Section 27
  • Employment Act, 2007Section 35(5) and (6)
  • Employment Act, 2007Section 89
  • Regulation of Wages (General) Order
  • Regulation of Wages (Protective Security Services) Order, 1998Paragraph 7 (Overtime)
  • Public Holidays Act
  • Evidence ActSection 107
  • Limitation of Actions ActSection 4(1) (Cap. 22)

Cases cited (14)

  • Selle v Associated Motor Boat Co.
    [1968] EA 123
  • Mbogo V Shah
    [1968] EA Page 93
  • Rajab Barasa & 4 Others v Kenya Meat Commission
    (2014) eKLR
  • Meshack Kiio Ikulume v Prime Fuels Kenya Limited
    (2013) eKLR
  • Kenya Power & Lighting Co. Ltd v Nathan Karanja Gachoka & Another
    [2016] eKLR
  • Bernard Wanjohi Muriuki v Kirinyaga Water & Sanitation Company Ltd
    [2012] eKLR
  • Teresa Carlo Omondi v Transparency International-Kenya
    [2017] eKLR
  • Rogoli Ole Manadiegi Vs General Cargo Services Limited
    [2016] e KLR
  • Patrick Lumumba Kimuyu Vs Prime Fuels (K) Limited
    [2018] eKLR
  • Abigael Jepngetich Kosgei v Westmont Power (K) Limited
    [2021] eKLR
  • Evans Kisiero v Suraya Property Group Ltd
    [2017] eKLR
  • The German School Society & another v Ohany & another
    [2023] KECA 894 (KLR)
  • G4S Security Services (K) Limited v Joseph Kamau & 468 Others
    [2018] eKLR
  • M. R. Gupta v Union of India
    (1995) (5) SCC 628
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

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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, "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.