Otieno v Pride Security Services Ltd (Appeal E033 of 2023) [2024] KEELRC 486 (KLR)
The bottom line
#A Kenyan court ordered a security company to pay a guard Kshs 123,406 for underpayment, leave and overtime because the employer kept no records.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.What is the role of a first appellate court on appeal?
- 2.Whether the Appellant proved unfair termination of employment/constructive dismissal, given his resignation letter
- 3.Whether the applicable threshold of proof for unfair termination is section 47(5) of the Employment Act rather than sections 107 and 108 of the Evidence Act
- 4.Whether the Appellant was underpaid relative to the prescribed minimum wage under the Regulation of Wages (General)(Amendment) Order, 2017
- 5.Whether the Appellant was entitled to overtime pay and pay for accrued annual leave, having regard to the employer's record-keeping duty under section 10(3) of the Employment Act
- 6.Whether unremitted NHIF contributions should be awarded
Key legal issues
#Unfair termination/constructive dismissal
Not established; the Appellant voluntarily resigned to resume studies
The resignation letter dated 13 February 2021 gave resumption of studies as the reason and made no allegation of hostile work environment or frustrations. The Court therefore agreed with the trial magistrate that the case was not one of unfair termination or constructive dismissal, while noting the correct proof threshold is section 47(5) of the Employment Act, 2007.
Underpayment relative to prescribed minimum wage
Proved; Appellant paid Kshs 7,400/- monthly against prescribed minimum wage of Kshs 15,141/- for a night security guard
Remuneration of security guards is prescribed by Regulation of Wages Orders. The employer had a duty to keep pay records but produced none. The trial magistrate should have applied the prescribed minimum wage in the Regulation of Wages (General)(Amendment) Order, 2017 since the Appellant testified to his earnings. The arithmetic yielded an underpayment of Kshs 92,892/- over 12 months, exclusive of house allowance.
Overtime and accrued annual leave
Allowed; the employer's failure to keep leave and overtime records under section 10(3) of the Employment Act favoured the employee
Under section 10(3) of the Employment Act, 2007, the employer should have kept and placed before the Court a statement of the Appellant's entitlement to annual leave and overtime for holiday work. The trial magistrate's failure to consider the impact of that provision was an error of law, and the Court allowed these heads at Kshs 15,257/- each.
Unremitted NHIF contributions
Refused; recovery is a matter for the Fund under the National Hospital Insurance Act
The National Hospital Insurance Act has provisions for the Fund to recover unremitted contributions from employers. The Court held the Appellant should pursue those options with the Fund rather than recover them in this suit.
Legal principles established
#- On a first appeal, the court must re-evaluate the evidence, assess it and reach its own conclusions while making due allowance for not having seen or heard the witnesses
- The threshold of proof for unfair termination of employment claims is set out in section 47(5) of the Employment Act, 2007, not sections 107 and 108 of the Evidence Act
- Where an employer fails to keep and produce pay records, the court may determine underpayment by reference to the prescribed minimum wage where the employee has testified to his earnings
Court orders
#- 1.Findings of the Senior Principal Magistrate rejecting the heads of claim for underpayments, accrued leave and overtime pay vacated and set aside
- 2.Judgment entered for the Appellant: Underpayments Kshs 92,892/-; Accrued leave Kshs 15,257/-; Overtime Kshs 15,257/-; Total Kshs 123,406/-
- 3.Costs of the Appeal awarded to the Appellant on half scale and costs before the Subordinate Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Senior Principal Magistrates Court
- Not stated in judgment
- Jurisdiction invoked
- First appellate jurisdiction of the Employment and Labour Relations Court over appeals from the Senior Principal Magistrates Court (Employment and Labour Relations Court Act); Memorandum of Appeal lodged 5 June 2023
Relief refused
#Claim for unfair termination of employment/constructive dismissal
The Appellant voluntarily resigned by letter dated 13 February 2021 to resume studies; the letter did not allege hostile work environment or frustration
Unremitted NHIF contributions
The National Hospital Insurance Act provides for the Fund itself to recover unremitted contributions; the Appellant should pursue those options with the Fund
Contractual dues of Kshs 248,587.88/- as claimed
The Court set aside only the underpayments, accrued leave and overtime findings and substituted judgment limited to those heads
Costs
The Appellant is awarded costs of the Appeal on half scale and costs before the Subordinate Court.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
this being a first appeal, it was the duty of the Court…. To re-evaluate the evidence, assess it and reach its own conclusions remembering that it had neither seen nor heard the witnesses and hence making due allowance for that.
the applicable threshold for proof for actions for unfair termination of employment is outlined in sections 47(5) of the Employment Act, 2007, and not sections 107 and 108 of the Evidence Act.
Despite the non-production of pay records, the Senior Principal Magistrate should have looked up the prescribed minimum wage in the Regulation of Wages (General)(Amendment) Order, 2017 cited by the Appellant, because the Appellant had testified as to how much he was earning.
From the above, the Court holds that the Senior Principal Magistrate fell into errors of law and fact in rejecting the heads of claim for underpayments, accrued leave, and overtime pay, and the Court vacates and sets aside those findings.
The Appellant has partly succeeded. He is awarded costs of the Appeal on half scale and costs before the Subordinate Court.
Issues in the judgment
#Case number of the appeal and of the underlying cause before the Senior Principal Magistrates Court are not stated in the judgment
Typographical error in the word 'effect' rendered as 'efiect'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Otieno v Pride Security Services Ltd (Appeal E033 of 2023) [2024] KEELRC 486 (KLR)", Case Analysis (2024). Memorandum of Appeal filed 5 June 2023 (Cause from Senior Principal Magistrates Court; number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/486/eng@2024-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.