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ELRCPartially AllowedELRC Appeal (Nairobi), from MCELRC Cause No. 267 of 2018· [2025] KEELRC 2579 (KLR)

Uzuri Foods Limited v Manzi (Appeal E078 of 2022) [2025] KEELRC 2579 (KLR)

Employment and Labour Relations Court
26 September 2025
10,464 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~42 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court slashed a driver's award from Kshs 2 million to about Kshs 152,000, holding employees must prove overtime claims while employers must allow a companion at disciplinary hearings.

What this practically means

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Executive summary

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The Appellant, Panda Furniture Mart Limited, appealed against the judgment of Hon. E.M. Kagoni (PM) of 2nd June 2022 in MCELRC Cause No. 267 of 2018, which had awarded the Respondent, Daniel Nyamai Manzi, a former long-distance driver, Kshs. 1,994,338/- comprising overtime and public holiday pay plus a certificate of service. The Respondent filed a cross-appeal seeking a finding of unfair termination with damages and notice pay. On the overtime claim, the court held that the learned magistrate erred in law in stating the burden did not rest on the claimant; applying Rogoli Ole Manadiegi, it found the claim for 36 overtime hours weekly exaggerated and unproved on a balance of probability, and set aside the overtime award. The public holiday award of Kshs. 118,292/- was upheld since the employer, custodian of the records, did not produce motor vehicle mileage records to controvert the specific dates pleaded. On the cross-appeal, the court found no basis to fault the trial court's finding that the reasons for termination (fuel-related misconduct) were valid, but held the claimant was not accorded his right under section 41 of the Employment Act to be accompanied by a fellow employee or union representative at the disciplinary hearing. The trial court's judgment was set aside and substituted with an award of Kshs. 151,836/- (one month notice pay of Kshs. 33,544/- for procedural unfairness plus public holiday back pay of Kshs. 118,292/-) with costs of the suit and interest at court rate. No order was made as to costs of the appeal and cross-appeal. A 30-day stay was granted.

Key legal issues

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01

Burden of proof on the claim for overtime

Holding

The learned magistrate erred in law in holding that the burden of proving overtime did not rest on the claimant; the overtime claim was exaggerated and not proved on a balance of probabilities and the award was set aside.

Reasoning

The court applied Rogoli Ole Manadiegi: the employee bears the burden of establishing hours served in excess of the legal maximum. The respondent pleaded 36 overtime hours weekly but gave no dates, venues, or particulars of the long-distance trips; the claim was found exaggerated on a balance of probability. The magistrate erred in shifting the burden to the employer under section 10(7).

p. 9
02

Public holiday pay award

Holding

The award of Kshs. 118,292/- for public holidays was upheld because the employer, custodian of the records, did not produce motor vehicle mileage records to controvert the specific dates pleaded.

Reasoning

The claimant pleaded specific dates of public holidays worked. The respondent employer, who admitted being custodian of employment records, failed to produce the motor vehicle mileage record to controvert the claim. The court found no basis to interfere with the trial magistrate's award on this head.

p. 9
03

Substantive fairness of termination (cross-appeal)

Holding

The trial court's finding that the reasons for termination were valid was not disturbed; the respondent's allegation of dismissal for raising unremitted statutory deductions was correctly found untrue.

Reasoning

The dismissal letter cited excessive fuel demands and prior warnings. The claimant's own pleaded reason (raising non-remittance of NSSF deductions) was unsupported, as the NSSF statement showed remittances up to March 2018. Following Mbogo v Shah, the court found no basis to fault the trial court's findings on the reasons for termination.

p. 16
04

Procedural fairness under section 41

Holding

The claimant was not afforded his right under section 41 to be accompanied by a fellow employee or union representative; the cross-appeal was allowed on procedure only, and one month's notice pay of Kshs. 33,544/- was awarded.

Reasoning

The minutes of the disciplinary hearing were produced but the court found the cross-appellant was not afforded his right to be accompanied by a witness of choice, and the invitation to the hearing was not produced. The trial court had not addressed this issue. The court limited the fault to procedure and awarded one month notice pay computed from the last payslip.

p. 17

Legal principles established

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  • The burden of establishing hours or days served in excess of the legal maximum rests with the employee
  • For termination to pass the fairness test it must be both substantively justified and procedurally fair
  • An employer who fails to prove the reason for termination is deemed to have unfairly terminated employment under section 45
  • An appellate court must reconsider the evidence and draw its own conclusions while making allowance for not having seen or heard the witnesses

Court orders

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  1. 1.Appeal allowed; the award of overtime (Kshs. 1,876,046/-) disallowed and set aside
  2. 2.Cross-appeal allowed on procedure only, the termination being held procedurally defective under section 41 of the Employment Act
  3. 3.Judgment and Decree of the Hon. E.M. Kagoni (PM) delivered on 2nd June 2022 in MCELRC Cause No. 267 of 2018 set aside and substituted with judgment for the claimant of 1 month notice pay Kshs. 33,544/- plus public holiday back pay Kshs. 118,292/-, total Kshs. 151,836/- plus costs of the suit with interest at court rate from date of judgment
  4. 4.No order as to costs on the appeal and cross-appeal
  5. 5.Stay of 30 days granted

Authorities

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Legislation

  • Employment Actsection 10(7)
  • Employment Actsection 27(1)
  • Employment Actsection 41(1) and (2)
  • Employment Actsection 42(1)
  • Employment Actsection 43(1) and (2)
  • Employment Actsection 45(2)
  • Employment Actsection 47(5)
  • Employment Actsection 74
  • Regulations of Wages (Protective Security Services) Order1998

Cases cited (17)

  • KUDHEIHA Workers Vs Charles Waithaka Goka t/a Apple Bees Pub and Restaurant
    [2013] eKLR
  • Trust Bank Limited -Vs- Paramount Universal Bank Limited & 2 Others
    Nairobi [Milimani] HCCC No. 1243 of 2021
  • Patrick Lumumba Kimuyu Vs. Prime Fuels (K) Limited
    [2018] eKLR
  • Mutie v KB Sanghani & Sons
    (Cause 100 of 2021) [2023] KEELRC 594 (KLR)
  • Rogoli Ole Manadiegi vs General Cargo Services Limited
    [2016] eKLR
  • AA v SGA Security Solutions Limited
    (Employment and Labour Relations Appeal E002 of 2022) [2022] KEELRC 1553 (KLR)
  • Mwanga v Metal Cans And Closures (K) Limited
    (Cause 2278 of 2016) [2022] KEELRC 1108 (KLR)
  • Abigael Jepkosgei Yator & another v China Hanan International Co. Ltd
    [2018] eKLR
  • Selle v Associated Motor Boat Co.
    [1968] EA 123
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Naima Khamis v Oxford University Press (EA) Limited
    [2017] eKLR
  • Menginja Salimi Murgani vs. Kenya Revenue Authority
    [2006] eKLR
  • Mary Chemweno Kiptui Vs Kenya Pipeline Company Limited
    (2014) eKLR
  • Rebecca Ann Maina & 2 Others Vs Jomo Kenyatta University Of Agriculture And Technology
    2014 eKLR
  • Thomson Kerongo & 2 others v James Omariba Nyaoga & 3 others
    [2017] eKLR
  • Judith Mbaya Tsisiqa v Teachers Service Commission
    [2017] eKLR
  • Mbogo v Shah
On appeal from
Chief Magistrate's Court (Employment and Labour Relations), Nairobi
MCELRC Cause No. 267 of 2018
Jurisdiction invoked
Appellate jurisdiction of the Employment and Labour Relations Court over appeals from the Chief Magistrate's Employment and Labour Relations Cause (Memorandum of Appeal dated 20th June 2022 and Cross-appeal dated 8th July 2022)

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, "Uzuri Foods Limited v Manzi (Appeal E078 of 2022) [2025] KEELRC 2579 (KLR)", Case Analysis (2025). ELRC Appeal (Nairobi), from MCELRC Cause No. 267 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2579/eng@2025-09-26

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