Njuguna v Jomo Kenyatta Girls High School

8. 9. The Appellant lists 7 Grounds of Appeal, summarized as follows: a. The Trial Court erred by awarding the Appellant a paltry Kshs. 19,502 in compensation, despite the nding that termination was substantively and procedurally unfair. b. The Trial Court erred in failing to nd that the Appellant, did not in any way cause or contribute to circumstances leading to termination, and erred in declining to award equivalent of 12 months’ salary in compensation. c. The Trial Court erred by awarding the Appellant a token as overtime, irrespective of the evidence of overtime supplied by the Appellant. d. The Trial Court erred by failing to award o-duty days and public holidays. It is proposed by the Appellant that: a. The Court enhances the award of compensation and overtime, as submitted at the Trial Court. b. The enhanced awards to attract interest at court rate, from the date of the Trial Court Judgment. c. Costs of the Appeal. 10. The proposal above does not say anything about o-duty days and public holidays, and the Court shall therefore proceed on the basis that nothing turns on these two items, mentioned in Ground [d] above [Ground 7 of the Memorandum of Appeal]. The prayers in this Appeal are conned to enhancement of compensation, overtime pay, costs and interest. 11. There was no attendance by the Attorney-General for the Respondent throughout the Appeal proceedings. The Appeal was last mentioned on 12th May 2026, when the Appellant conrmed ling of his closing submissions. 12. He submits that the Trial Court found that the Respondent relied on letters allegedly written by students in dismissing the Appellant. The letters were not authenticated. There was no evidence of investigation. The Trial Court concluded that there was no valid reason to justify termination under Sections 43 and 45 of the Employment Act. 13. The Trial Court found also, that termination was not based on fair procedure under Section 41 of the Employment Act. 14. The Appellant submitted at the Trial Court that he did not cause or contribute to, the circumstances surrounding his dismissal. 15. There was no justication therefore, in awarding him 1-month salary in compensation for unfair termination, instead of equivalent of 12 months’ salary as pleaded, at Kshs. 136, 519. 16. On overtime, the Appellant submits that he worked for 12 hours a day, without compensation for the excess hours. He submitted before the Trial Court that he was entitled to a total of Kshs. 230,4423 as overtime [page 83 of the Record]. The Court Finds: 17. The Trial Court was not bound in law, to award the Appellant maximum compensation, equivalent of 12 month’s salary, on account of its nding that termination was unfair in substance and procedure. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2217/eng@2026-07-30 2

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18. In determining appropriate remedies for unfair termination, the Court is bound to consider factors listed under Section 49 [4] of the Employment Act. The conduct of the Employee is just one of the factors. Other factors include the length of service, and other sums paid to the Employee on separation. 19. The Appellant was employed on 18th October 2021. His letter of employment is at page 26 of the Record. His contract was terminated on 10th November 2022, as per termination letter on Record. He served for only 1 year and 1 month. He was paid Kshs. 43,897 on termination. He accepted the decision of the Respondent to terminate his contract, and accepted the payment, while not discharging the Respondent from future claims [page 45 of the Record]. There was no justication in his pursuit of equivalent of 12 months’ salary in compensation, having served for 13 months. 20. The award of 1-month salary in compensation was reasonable, taking into account the length of service, among other relevant factors. The Trial Court did not exercise it discretion in award of compensation, injudiciously. 21. The award of Kshs. 15,000 as token overtime, pay had no foundation in law. Without establishing whether the Appellant worked excess hours, and how many excess hours he worked if any, the Trial Court merely concluded that, ‘’night guards ordinarily work extended hours, and where the Employer fails to keep proper records, Courts often grant reasonable assessment.’’ Overtime is not given at the discretion of the Court. It is regulated under the law, and grounded on a prescribed mathematical formula. 22. While the Trial Court concluded in its evaluation of the evidence on underpayment, that the Respondent did not challenge the gures quoted by the Appellant, it does not appear to have evaluated evidence on overtime, and made any conclusion. It was not suggested in the Judgment, whether the Respondent challenged the Appellant’s evidence on overtime. The Trial Court drifted into what in its view, was normally granted by the Courts as reasonable assessment, before settling on a token of Kshs. 15,000 as overtime pay. 23. The Appellant gave evidence on excess hours worked, elaborated in his witness statement, page 70 – 71 of the Record. 24. The Trial Court ought to have evaluated this evidence, against the evidence adduced by the Respondent on overtime, and make a specic nding based on The Regulation of Wages [Protective Security Services] Order, 1988. 25. Regulation 6, stipulates that the normal working week of all Employees in the industry, including night guards, shall be 52 hours spread over 6 days of the week. 26. An Employee who works any time in excess of normal hours, is entitled to overtime pay. 27. The formula in computing overtime pay is prescribed under Regulation 7. Overtime rate is given at 1.5 of the normal hours. The rate is adjusted to twice the normal rate, for work done during rest days. 28. The hourly rate shall be, where the Employee is not employed on hourly rate, one-two hundred and twenty fth of the Employee’s basic monthly salary. 29. The Appellant’s position is that he was entitled to a basic monthly salary of Kshs. 16,959 [page 70 of the Record]. 30. His normal hours in a 6 days’ week were 52, or 8.6 hours a day. 31. He claimed that he worked 12 hours a day, which would translate to 12 hour – 8.6 hours = 3.4 hours in overtime daily. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2217/eng@2026-07-30 3

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32. In a working month, he would have done 3.4 hours x 24 days = 81.6 hours. 33. In 13 months worked, this would translate to 1,060.8 excess hours. 34. The hourly rate, based on the basic monthly salary quoted at Kshs. 16,959, would be Kshs. 16,959 x 1 divide by 225 = Kshs. 75.3. 35. Kshs. 75.3 x 1.5 = Kshs. 112.5. 36. Kshs. 112.5 x 1,060.8 hours, would yield overtime pay at Kshs. 119,340. 37. The Appellant submitted overtime pay at Kshs. 216,539 at page 71 of the Record, and Kshs. 230,423 at page 89 of the Record. 38. His basic salary for 13 months served, amounted to approximately Kshs. 220,467. It is hardly possible that pay for excess hours worked, would outstrip pay for normal hours worked. 39. The Court ought to implement compensation for excess hours worked, relying on the formula prescribed under The Regulation of Wages [Protective Security Services] Order 1988, in as much as it is practicable. It does not always have to be exact to a coin. The mathematics could be imprecise, but the statutory formula is preferable to granting overtime pay, based on tokenism, judicial discretion, and rule of thumb. It is ordered: a. The Appeal is partly allowed. b. The Trial Court’s award of overtime pay at Kshs. 15,000, is replaced with an award of overtime pay at Kshs. 119,340. c. Costs to the Appellant. d. Interest granted at court rate, from the date of this Judgment, till payment of made in full. DATED, SIGNED AND DELIVERED ELECTRONICALLY AT NAKURU, UNDER RULE 68[5] OF THE E&LRC [PROCEDURE] RULES, 2024, THIS 30TH DAY OF JULY 2026. JAMES RIKA JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2217/eng@2026-07-30 4

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