Wafula & another v Equator Bottlers Limited & another (Appeal E026 & E042 of 2024 (Consolidated)) [2025] KEELRC 1421 (KLR)
The bottom line
#A Kenyan court ruled employers cannot use one salary to cover overtime, rest days and public holidays, but employees must produce solid evidence to claim unpaid extra hours.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Employee proved her claims for unpaid overtime (extra four hours daily) and for work on Sundays
- 2.Whether the Magistrate's award of Kshs. 203,520/- for public holidays worked should stand despite the contractual clauses providing a global remuneration covering extra hours and public holidays
- 3.Whether the Magistrate erred in awarding leave arrears of Kshs. 84,406/-
- 4.Whether the clauses of the contract purporting to cover overtime, rest days and public holidays in a global sum were lawful
- 5.Whether costs should have been awarded to the Employee in the trial court and on appeal
Key legal issues
#Legality of global remuneration clauses covering overtime, rest days and public holidays
The clauses requiring the employee to accept one salary as covering extended hours and public holidays were illegal; a separate sum remained payable for public holidays actually worked.
The court distinguished overtime from public holiday pay, noting different computation rules: overtime at 1½ times the normal hourly rate beyond normal weekly hours, and twice the rate for rest days or public holidays. Because a single global sum cannot lawfully cover both categories, the Magistrate's award of Kshs. 203,520/- for public holidays worked, based on evidence in the show cause letter, was upheld despite the contract clauses.
Overtime and Sunday work claims
The Employee failed to prove her claims for overtime and Sunday work; no award was made.
Although the Employee relied on shift sheets and fumigation schedules, the court found she had not made out a case supported by admissible evidence. Documents not produced before the Magistrate's Court could not be used to embellish either party's case on appeal, and no leave to adduce additional evidence was sought. The Magistrate's refusal of these heads was therefore confirmed.
Fairness of the dismissal
The dismissal was for cause and fair; the employee was heard and the disciplinary panel's findings were upheld.
The record showed the Employee responded to the show cause letter, was heard at the disciplinary hearing on 9th June 2022, and was heard on appeal, whose panel was commended. She admitted inputting wrong values in a hurry. No additional evidence controverted the panel's findings, so the dismissal met the fairness requirements of section 41 of the Employment Act and Article 41 of the Constitution.
Leave arrears award
The Magistrate's award of leave arrears of Kshs. 84,406/- was upheld.
The court confirmed the award despite the Employee's submission that the figure was slightly miscalculated and should be Kshs. 88,782.66 based on 23.2 accrued leave days per her June 2022 payslip plus 2.2 additional days. The Employer's contention that leave forms showed leave was taken did not displace the trial court's finding on the evidence.
Legal principles established
#- A contract of employment cannot lawfully provide a global sum to cover both overtime and work on rest days and public holidays; such clauses are illegal.
- A first appeal is reheard on both facts and law, requiring the appellate court to re-evaluate the evidence and reach its own conclusions while allowing for the lack of advantage in seeing witnesses.
- A dismissal is fair where the employee is heard in response to a show cause letter and at a disciplinary hearing, satisfying section 41 and Article 41 of the Constitution.
Court orders
#- 1.The appeal by the Employee succeeds only to the extent of costs, with the decision of Hon. F. Rashid, Principal Magistrate dated 25th June 2024 upheld in its entirety
- 2.The Employee awarded costs at the appellate level for successfully challenging the Employer's appeal
- 3.Upholding of the trial court's awards of Kshs. 203,520/- for public holidays worked and Kshs. 84,406/- for leave arrears
- 4.Orders accordingly, dated and delivered at Nairobi on 15th May 2025
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrate's Court at Kisumu
- Memorandum of claim filed 12th October 2022 (number not stated)
- Jurisdiction invoked
- First appellate jurisdiction over an appeal from the Magistrate's Court in an employment claim (Employment and Labour Relations Court, appeal on both facts and law)
- Consolidated with
- Both appeals consolidated under Appeal No. E026 of 2024; the Employer's cross-appeal was filed on 27th February 2025
Relief refused
#Overtime compensation of Kshs. 3,123,250/- claimed by the Employee for extra four hours worked daily
The Employee did not attach sufficient evidence of overtime to make out a case for an award
Compensation of Kshs. 485,780/- for work on Sundays
The claim was not supported to the court's satisfaction; the production plan programmes relied on were not part of the original evidence before the Magistrate's Court
Costs
The Employee is entitled to costs at this level of appeal for successful challenge to the appeal preferred against her by the Employer.
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.
The Employer therefore has two clauses in the contract of employment that are illegal. One cannot receive a global sum to cover for overtime and work on rest days and public holidays.
As the first appellate court, I am therefore duty bound to revisit and exhaustively re-evaluate the evidence presented before the trial court to arrive at my own independent conclusions
The foregoing is ample that the Appeal by the Employee succeeds to the extent that the decision of Hon. F. Rashid Principal Magistrate dated 25th June 2024 is upheld in its entirety. On costs, the Employee is entitled to costs at this level of appeal for successful challenge to the appeal preferred against her by the Employer.
Both the Employee and Employer are guilty of embellishing their cases after judgment. There was no leave sought to adduce additional evidence.
Issues in the judgment
#The judgment describes the dismissal as justified and upholds the trial court, yet characterises the Employee's appeal as succeeding, creating some internal tension in framing the outcome.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wafula & another v Equator Bottlers Limited & another (Appeal E026 & E042 of 2024 (Consolidated)) [2025] KEELRC 1421 (KLR)", Case Analysis (2025). Appeal No. E026 of 2024 (consolidated with a related appeal by the Employer). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1421/eng@2025-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.