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ELRCPartially AllowedAppeal (ELRC Nakuru, related to E012 of 2024; companion Appeals E013 of 2024 and E014 of 2024)

Kimani v Lavington Security Limited (Appeal E015 of 2024) [2025] KEELRC 603 (KLR)

Employment and Labour Relations Court
28 February 2025
2,155 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan security guard won higher underpayment compensation but lost overtime and holiday claims because he had no evidence of the actual days and hours worked.

What this practically means

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Executive summary

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This was a first appeal to the Employment and Labour Relations Court at Nakuru, decided together with two companion appeals (E013 of 2024, Omanga v. Lavington Security Limited, and E014 of 2024, Bii v. Lavington Security Limited), all arising from the same Trial Court judgment of 27th February 2024. The Appellant, employed as a night guard at Kshs. 9,600 monthly from 1st October 2019 until a redundancy on 1st October 2021, had been awarded underpayment of salary (Kshs. 97,749), annual leave (Kshs. 13,572) and severance (Kshs. 13,572), with costs and interest. He appealed against the refusal of overtime, public holiday pay and off-duty days, and the reduction of his underpayment claim. The appeal was canvassed by written submissions on the Record of Appeal. Applying David Odhiambo Apel & Another v. Telkom Kenya Limited [2016] eKLR, the Court held that submissions are not evidence, and that the Appellant had failed to prove through evidence that he worked excess hours, on public holidays or rest days. The Court held that Labour Office recommendations do not bind it, and that the reverse burden under Section 10(7) of the Employment Act applies only where no written contract was exhibited. On underpayment, the Court computed the correct consolidated salary at Kshs. 16,143 (basic Kshs. 14,038 plus 15% house allowance under Regulation 5 of the Protective Security Services Order), yielding an underpayment of Kshs. 157,032 over 24 months, and awarded the balance of Kshs. 59,283. The appeal was partly allowed, with no order on costs and interest at court rates from the date of judgment.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Trial Court erred in declining overtime pay where the Appellant adopted a witness statement containing such evidence
  2. 2.Whether the Appellant proved entitlement to public holiday pay
  3. 3.Whether the Appellant was entitled to off-duty (rest) days compensation, said to have been unchallenged and supported by the Labour Office
  4. 4.Whether the Trial Court erred in reducing the amount of underpayment of salary due
  5. 5.Whether the Trial Court failed to consider the Appellant's submissions

Key legal issues

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01

Evidential burden of proving overtime, public holiday and rest day work

Holding

The Trial Court correctly declined these prayers; the Appellant failed to adduce evidence of the specific days and hours worked

Reasoning

Although the written contract established entitlement to overtime, rest days and holiday pay under the contract read with the Industry Wage Order, the issue was whether the Appellant proved he actually worked excess hours or on specific holidays and rest days. He pleaded only generally, tabulated figures for the first time in submissions, and did not request production of the Respondent's employment records. The burden of proof was not reversed by Section 10(7) since a written contract was exhibited.

p. 4
02

Weight of Labour Office findings

Holding

The Labour Officer's letter establishing 96 off-duty days did not bind the Trial Court

Reasoning

The Labour Officer makes recommendations under Section 47(2) of the Employment Act based on his opinion as to the best means of settling a dispute. Such opinion is not conclusive evidence of disputed matters before the Court. The Trial Court therefore properly disregarded the letter as proof of the rest days claim.

p. 4
03

Underpayment of salary computation

Holding

The Appellant's monthly consolidated salary ought to have been Kshs. 16,143; he was underpaid by Kshs. 6,543 monthly, and the Court granted the balance of Kshs. 59,283 over the earlier award

Reasoning

The Appellant worked at NCPB in Subukia, falling within former Town Councils under the Legal Notice, and his designation was not particularized by the Respondent, so he was taken as a night guard with a basic monthly rate of Kshs. 14,038. Regulation 5 of the Regulation of Wages (Protective Security Services) Order entitled him to 15% house allowance. He was paid Kshs. 9,600 monthly, producing an underpayment of Kshs. 157,032 over 24 months; the Trial Court had awarded Kshs. 97,749.

p. 5

Legal principles established

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  • Submissions are not evidence; they must be founded on facts established through pleadings and evidence
  • Findings or recommendations of the Labour Office do not bind the Court
  • Reverse burden under Section 10(7) of the Employment Act applies only where the Employer has failed to exhibit a written contract or written particulars
  • It remains the primary evidential responsibility of a Claimant to establish entitlement to benefits, notwithstanding the Employer's duty to keep records

Court orders

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  1. 1.The Appeal is partly allowed
  2. 2.The Respondent shall pay to the Appellant, the balance of underpayment of salary at Kshs. 59,283
  3. 3.No order on the costs
  4. 4.Interest allowed at court rate, from the date of Judgment, till payment is made in full

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Trial Court (magistrates' court, Employment and Labour relations claim)
Jurisdiction invoked
First appellate jurisdiction over the Trial Court under the Employment and Labour Relations Court Act / Employment Act framework
Consolidated with
Appeal Number E013 of 2024 (Omanga v. Lavington Security Limited), Appeal Number E014 of 2024 (Bii v. Lavington Security Limited)

Relief refused

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Overtime pay of Kshs. 286,116

No evidence was placed before the Trial Court establishing that the Appellant worked excess hours; figures supplied only in submissions, which are not evidence

p. 3

Public holiday pay of Kshs. 43,710

The Appellant merely named public holidays in a calendar year without specifying during which holidays he worked

p. 3

Off-duty (rest) days compensation of Kshs. 190,736

The Labour Officer's recommendations do not bind the Court and were not conclusive evidence of disputed matters

p. 4

Costs of the Appeal

The Court ordered no order on costs

p. 5

Costs

No order on the costs (each party to bear own costs implied by 'no order'); interest allowed at court rate from the date of Judgment till payment in full

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

submissions are not evidence. They are a way, through which the Parties and their Representatives, crystallize the substance of their respective cases.
p. 3status of submissions in evidence
The findings or recommendations of the Labour Ofice, do not bind the Court.
p. 4Labour Office recommendations
reverse burden of proof, would only apply under Section 10 [7] of the Employment Act, where the Employer has failed to exhibit a written contract or written particulars prescribed under subsection 1.
p. 4burden of proof under Section 10(7)
The Respondent shall pay to the Appellant, the balance of underpayment of salary at Kshs. 59,283.
p. 5final orders
The Appeal is partly allowed.
p. 5final orders - disposition

Issues in the judgment

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minor

The Appellant's name is never stated in the judgment; parties are identified only as Appellant and Respondent, and the case name is inferred from related appeals

minor

Inconsistent naming of the Court of Appeal authority: 'Douglas Odhiambo Apel [not Ape]' in submissions versus 'David Odhiambo Apel' in the Court's own holding

minor

The Appellant's pleaded salary (Kshs. 9,600) and the figures used in the Respondent's computation (Kshs. 9,500) and Trial Court award (Kshs. 97,949 vs 97,749) are inconsistent within the judgment

minor

The Memorandum of Appeal is described as common to related appeals but the actual appeal number of this matter is not stated on the face of the judgment

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, "Kimani v Lavington Security Limited (Appeal E015 of 2024) [2025] KEELRC 603 (KLR)", Case Analysis (2025). Appeal (ELRC Nakuru, related to E012 of 2024; companion Appeals E013 of 2024 and E014 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/603/eng@2025-02-28

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