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ELRCPartially AllowedCause No. E011 of 2025

Jona Wafula Wasike v Turner Barker & Hartfield (1968) Ltd & Another

Employment and Labour Relations Court of Kenya at Kitale
24 September 2026
MOMaureen Onyango
2,033 words in judgment
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The bottom line

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A Kenyan court awarded a retired employee Kshs. 137,340 for overtime and untaken leave, but ruled his employer's director cannot be sued personally.

What this practically means

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Executive summary

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The Claimant, a former employee of the 1st Respondent from 1st July 1995 until his retirement on medical grounds on 12th July 2025, sued the company and its director jointly and severally for Kshs. 1,155,065 comprising salary arrears, underpayment of wages, overtime allowance, severance pay, unlawful deductions and leave allowance, as tabulated by his union. The Respondents denied liability and sought dismissal with costs. The court framed two issues: proper joinder of the 2nd Respondent and entitlement to the reliefs. On joinder, the court held that a company bears its own contractual and employment obligations, and absent pleaded fraud or exceptional circumstances, the director could not be personally liable; the claim against him was dismissed. On the reliefs, the court held that monetary claims must be specifically pleaded and proved and that a union tabulation alone proves nothing. Salary arrears, underpayment, severance pay and unlawful deductions were all declined for want of proof; severance pay was unavailable because the Claimant retired on medical grounds rather than through redundancy. However, the director's admission that the Claimant worked Saturdays until 5.00 p.m. and sometimes drove to Nairobi at night corroborated overtime, shifting the evidential burden to the employer, which produced no working-hour records; Kshs. 80,640 was awarded. The employer also conceded it had no leave records for 2023-2025, and Kshs. 56,700 in lieu of untaken leave was awarded. Judgment of Kshs. 137,340 was entered against the 1st Respondent with costs and interest from the date of judgment.

Key legal issues

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01

Whether the 2nd Respondent (a director) is properly joined

Holding

No cause of action established against the director personally; claim against him dismissed

Reasoning

A company has legal personality separate from its directors. The Claimant pleaded no fraud, impropriety or exceptional circumstances warranting lifting the corporate veil. A director is not, without more, personally liable for the company's employment obligations.

p. 6
02

Overtime allowance

Holding

Awarded at Kshs. 80,640

Reasoning

RW1 admitted the Claimant worked Saturdays until 5.00 p.m. and sometimes drove to Nairobi at night, corroborating overtime. The employer, obliged to keep working-hour records, produced none. The evidential burden shifted to the Respondents, who failed to rebut.

p. 10
03

Leave allowance

Holding

Payment in lieu of untaken leave for 2023, 2024 and 2025 awarded at Kshs. 18,900 per year, totalling Kshs. 56,700

Reasoning

Section 28 entitles an employee to 21 working days' annual leave; sections 10 and 74(1)(f) require the employer to keep leave records. The employer's records showed payment in lieu only for 2022, so it failed to prove leave was taken or paid for 2023-2025.

p. 13
04

Severance pay

Holding

Declined

Reasoning

Severance pay under section 40(1)(g) of the Employment Act is payable only on termination by redundancy. The Claimant acknowledged he was not declared redundant but retired on medical grounds.

p. 11

Legal principles established

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  • A company, not its directors, bears responsibility for its contractual obligations including employment obligations absent exceptional circumstances
  • Monetary relief must be specifically pleaded and proved; a union tabulation alone does not establish entitlement
  • Once an employee establishes work beyond ordinary hours, the evidential burden shifts to the employer to rebut it
  • The employer bears the burden of maintaining and producing leave records

Court orders

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  1. 1.Claim against the 2nd Respondent dismissed
  2. 2.Judgment entered for the Claimant against the 1st Respondent for overtime allowance of Kshs. 80,640
  3. 3.Payment in lieu of untaken leave of Kshs. 56,700 awarded
  4. 4.Claims for salary arrears, underpayment of wages, severance pay and unlawful deductions declined
  5. 5.Claimant awarded costs of the suit
  6. 6.Amount awarded to attract interest at court rates from date of judgment until payment in full
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act over employment disputes

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, "Jona Wafula Wasike v Turner Barker & Hartfield (1968) Ltd & Another", Case Analysis (2026). Cause No. E011 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2701/eng@2026-09-24

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