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ELRCDismissedNot stated in the judgment

Board of Management Siburi Mixed Secondary v Odek (Appeal E039 of 2024) [2025] KEELRC 1459 (KLR)

Employment and Labour Relations Court
15 May 2025
1,354 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that ongoing underpayment of wages is a 'continuing wrong', so workers can claim unpaid salaries even years later.

What this practically means

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Executive summary

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The Appellant appealed against a judgment of the Learned Magistrate delivered on 25th May 2024 awarding the Respondent Kshs. 652,072.75 in underpayments. The appeal raised five grounds: that underpayments for 2014 to 2018 were neither pleaded nor enforceable due to limitation under section 90 of the Employment Act; that the signed offer letter fixed the salary and made reviews dependent on available funds; that underpayments constituted a continuing injury and were time-barred; that the quantum was erroneous; and that the Magistrate ignored the Appellant's submissions and authorities. The Appellant sought setting aside of the judgment and dismissal of the suit with costs in both courts. The Respondent countered that the limitation defence could not be raised on appeal having not been pleaded before the trial court (relying on Order 2 Rule 4 and Town Council of Awendo), that his claim filed on 27th October 2021 fell within three years of his exit on 24th March 2021, and that the underpayment was a continuing wrong per The German School Society v Ohany. Applying Selle v Associated Motor Boat Co. as the first appellate court, the Judge held that the Magistrate had correctly treated the claim as a continuing injury, rejected the notion of limitation, and found the award proper since a bursar's salary is set by the Ministry of Education. The appeal was dismissed with costs to the Respondent on 15th May 2025.

Questions the Court framed

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

  1. 1.Whether the claims for underpayment for 2014 to 2018 were time-barred under section 90 of the Employment Act as a continuing injury
  2. 2.Whether the limitation defence could be raised on appeal when it was not pleaded before the trial court
  3. 3.Whether the underpayment claim was specifically pleaded and proven as special damages
  4. 4.Whether the minimum wage orders applied to the Respondent's position
  5. 5.Whether the total award of Kshs. 652,072.75 was justified

Key legal issues

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01

Whether the underpayment claim was time-barred under section 90 of the Employment Act

Holding

The claim was a continuing wrong capable of redress; the limitation argument was rejected

Reasoning

The Court applied the Court of Appeal's decision in The German School Society v Ohany, holding that a continuing wrong creating a continuing source of injury is an exception to the limitation rule. The Learned Magistrate had correctly contemplated the continuing injury and awarded relief, and the Court affirmed those findings.

p. 3
02

Whether the quantum awarded (Kshs. 652,072.75) was proper

Holding

The award was proper; the salary of a bursar is set by the Ministry of Education and the award did not exceed that provision

Reasoning

The Court found the sums claimed and awarded corresponded to the level of engagement as bursar, whose salary is set by the Ministry of Education, and that the award was not more than what the Ministry provides. It therefore declined to reverse the Magistrate on any ground advanced.

p. 3

Legal principles established

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  • A service-related claim based on a continuing wrong is an exception to the rule rejecting belated claims on the ground of limitation under section 90 of the Employment Act
  • A first appellate court must reconsider and evaluate the evidence itself and draw its own conclusions while making allowance for not having seen or heard the witnesses

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the Respondent
  3. 3.The award of Kshs. 652,072.75 in underpayments by the Learned Magistrate is affirmed

The bench

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

majority

Wrote the judgment

On appeal from
Magistrates' Court
Not stated in the judgment
Jurisdiction invoked
First appellate jurisdiction over the magistrates' court suit (Employment Act matters); no specific provision cited in the judgment

Relief refused

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Setting aside the judgment of the Learned Magistrate and dismissal of the Respondent's suit

The Court affirmed the finding of a continuing wrong and the soundness of the trial court's findings

p. 3

Costs of both the appeal and the case before the Magistrate's Court to the Appellant

Appeal dismissed with costs to the Respondent

p. 3

Costs

The Appeal is dismissed with costs to the Respondent.

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.

On appeal, I afirm the continuing wrong sufiered by the Respondent was capable of redress in the matter before the Learned Magistrate and the findings on the same are sound. I reject the notion of limitation.
p. 3Limitation and continuing wrong
As such the Court afirms the award with the result the Court declines the invitation to reverse the Learned Magistrate on any of the grounds advanced in appeal. The Appeal is dismissed with costs to the Respondent.
p. 3Final orders / disposition
this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.
p. 3Duty of first appellate court (Selle v Associated Motor Boat Co.)

Issues in the judgment

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minor

Respondent's submissions stated as filed on 13th March 2022, a date predating the judgment under appeal (25th May 2024); likely an error for 2025

minor

The Respondent is variously described as an accounts clerk and as a bursar

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, "Board of Management Siburi Mixed Secondary v Odek (Appeal E039 of 2024) [2025] KEELRC 1459 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1459/eng@2025-05-15

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