Gichuru v Emmanuel Trading Company Limited (Employment and Labour Relations Appeal E023 of 2023) [2024] KEELRC 2758 (KLR)
The bottom line
#Kenya's Employment Court confirmed that underpayment, leave, and housing allowance claims survive limitation defences and must be compensated using gross salary.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether or not the appellant's claim for salary underpayment, overtime, leave, public holidays worked and housing allowance were statute barred
- 2.Whether or not the award of compensation for unlawful termination should be interfered with
- 3.Who should bear the costs of the appeal
Key legal issues
#Limitation of employment claims under section 90 of the Employment Act
The claims for salary underpayment, overtime, leave, public holidays and housing allowance are continuing injuries; the suit filed four months after termination was not statute barred, and the trial court erred in dismissing them
Section 90 limits claims founded on employment contract to three years from the cause of action, or twelve months from cessation in the case of continuing injury. Relying on precedent holding underpayment, overtime, leave, public holidays and housing allowance to be continuing injuries accruing monthly, the court found that since the injury continued until termination on 30th January 2023 and suit was filed on 13th April 2023 within four months, the claims were filed within the twelve-month window. The trial court's dismissal was therefore erroneous.
Quantum of underpayment, house allowance and leave
The appellant was entitled to underpaid salary of Kshs. 160,115.67 based on the 2018 and 2022 Wage Orders, house allowance of Kshs. 38,064.60 at 15% of basic salary, and 21 leave days of Kshs. 14,802.90
The court applied the Regulation of Wages (General)(Amendment) Orders of 2018 and 2022 for a medium commercial vehicle driver outside cities and municipalities, computing monthly underpayment for 27 months and 9 months respectively, and assessed house allowance at 15% of basic salary and 21 leave days under section 28 of the Employment Act, limited to the amounts the appellant had submitted for.
Compensation for unlawful termination - computation on gross salary
The trial court's award of six months' salary was erroneous because it was computed on basic salary of Kshs. 15,000 rather than the correct gross salary of Kshs. 24,319.05, yielding a corrected award of Kshs. 145,914.05
Section 49(1)(c) caps compensation at twelve months gross salary. Gross salary comprises basic salary plus allowances. Although the trial court considered relevant factors under section 49(4) and justified its discretion, it used an incorrect gross salary, producing an award that was entirely erroneous and inordinately low, entitling the appellate court to interfere under the Butt v Khan standard. The one-month salary in lieu of notice was similarly revised.
Legal principles established
#- Claims for salary underpayment, overtime, leave, public holidays worked and housing allowance are continuing injuries for purposes of section 90 of the Employment Act, and a suit filed within twelve months of cessation of the injury is not statute barred
- Gross salary for purposes of compensation under section 49(1)(c) of the Employment Act comprises basic salary plus allowances
- An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate or was arrived at on wrong principles
Court orders
#- 1.The appeal is allowed and the lower court judgment set aside and replaced with an award in favour of the appellant totalling Kshs. 383,216.27, comprising one-month salary in lieu of notice of Kshs. 24,319.05; six months' compensation of Kshs. 145,914.05; salary underpayment of Kshs. 160,115.67; house allowance of Kshs. 38,064.60; and leave of Kshs. 14,802.90
- 2.The award is subject to statutory deductions
- 3.The appellant is awarded costs of the appeal and the court below
- 4.Interest at court rates from the date of the lower court judgment
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Trial court (magistrates' court, Nyeri)
- Jurisdiction invoked
- First appellate jurisdiction over appeals from subordinate courts in employment matters under the Employment and Labour Relations Court Act
Relief refused
#Claim for public holidays worked
No particulars of the public holidays were pleaded and the court could not ascertain which public holidays the appellant worked
Claim for overtime
The appellant did not prove that he routinely reported to work at 5AM and did not rebut evidence that the business was closed on Sundays
Claim for service pay
The employer remitted NSSF contributions, disqualifying the claim under section 35(6) of the Employment Act
Enhancement of compensation to the statutory maximum of twelve months' salary
The court was satisfied the trial court gave justification for its discretion; only the gross salary basis was corrected
Costs
The appellant is awarded costs of the appeal and the court below plus interests at court rates from the date of lower court judgment.
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.
Therefore, I find and hold that the trial court erred in dismissing the said claims contrary to the evidence presented.
Consequently, the appeal is allowed and the lower court judgment set aside and replaced with the following order in favour of the appellant:
The award is subject to statutory deductions but the appellant is awarded costs of the appeal and the court below plus interests at court rates from the date of lower court judgment.
his correct monthly gross salary was Kshs. 24,319.05 and multiplying it by six months, the correct award is Kshs. 145,914.05.
An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate.
Issues in the judgment
#The judgment's opening paragraph describes the claimant as 'the appellant' even at the trial stage, though the appeal properly lies against the trial court's judgment
The appellant's overtime case is pleaded inconsistently: the Statement of Claim says work was from 6am to 7pm, while the court's analysis records the appellant's allegation as 5AM to 5PM
The respondent's submission on limitation states the suit 'ought to have been commenced on 13th April 2023', which is the date the suit was actually filed, rendering the sentence internally incoherent
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kigen & 3 others v Sabatia Farmers Co-operative Society Limited (Employment and Labour Relations Cause E059 of 2021) [2025] KEMC 75 (KLR)[2025] KEMC 75 (KLR)29 Apr 2025followed
Cite this brief
#Cite this brief
Caselaw, "Gichuru v Emmanuel Trading Company Limited (Employment and Labour Relations Appeal E023 of 2023) [2024] KEELRC 2758 (KLR)", Case Analysis (2024). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2758/eng@2024-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.