Kentonda Company Limited v Wafula (Appeal E055 of 2024) [2025] KEELRC 48 (KLR)
The bottom line
#Kenyan courts will believe an employee's account when an employer cannot produce legally required work records, but vague overtime claims fail.
What this practically means
#Executive summary
#Key legal issues
#Employment relationship and casual employment
The admission of casual employment placed the employer under a duty to produce work records; absent records, the employee's account prevails and Section 37 protections apply
The appellant admitted engaging the respondent casually when work was available. Under Sections 10(6) and (7) read with Section 74 of the Employment Act, the employer must file work records with the claim. Without records the employer fails its legal duty, and the court is bound to believe the employee. The respondent was thus a protected employee entitled to statutory benefits.
Unfair termination and due process
Termination without notice, hearing and valid reasons under Sections 35, 45 and 49 of the Employment Act was unfair; compensation must be awarded with reasons, not a general award as pleaded
Section 37 entitled the respondent to notice under Section 35, a hearing, and valid and justified reasons. The appellant did not address these mandatory provisions. The trial court correctly found unfair termination but made a general award of the maximum 12 months' compensation without justification; judicial discretion requires stated reasons, and two months' gross wage was appropriate for under a year of service.
Overtime claim
The overtime claim failed for want of particulars; the employee must establish excess hours
The respondent pleaded overtime generally without stating when work started or ended. The employer's duty to produce records does not arise where the employee gives no particulars. Establishing hours served beyond the legal maximum rests with the employee, per Rogoli Ole Manadiegi and Patrick Lumumba Kimuyu. The global figure claimed was not justified.
Legal principles established
#- Where an employer fails to produce work records required under Sections 10(6), (7) and 74 of the Employment Act, the court is bound to believe the employee's particulars of claim
- Casual employees admitted by the employer fall under the protective provisions of Section 37 of the Employment Act
- An employer who does not justify termination reasons suffers an adverse finding of unfair termination
- The burden of establishing overtime hours rests with the employee, not by default of the employer's records
Court orders
#- 1.Compensation of Ksh.31,217.40
- 2.Notice pay of Ksh.15,608.70
- 3.Underpaid house allowance of Ksh.10,956.60
- 4.Service pay of Ksh.7,500
- 5.Costs of the lower court as awarded
- 6.Respondent awarded 50% of costs of the appeal
- On appeal from
- Mombasa CMELRC Cause No. E029 of 2022
- E029 of 2022
- Jurisdiction invoked
- First appeal to the Employment and Labour Relations Court from the trial court's judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kentonda Company Limited v Wafula (Appeal E055 of 2024) [2025] KEELRC 48 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/48/eng@2025-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.