Board of Management Siburi Mixed Secondary v Odek (Appeal E039 of 2024) [2025] KEELRC 1459 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the limitation defence could be raised on appeal when it was not pleaded before the trial court
- 3.Whether the underpayment claim was specifically pleaded and proven as special damages
- 4.Whether the minimum wage orders applied to the Respondent's position
- 5.Whether the total award of Kshs. 652,072.75 was justified
Key legal issues
#Whether the underpayment claim was time-barred under section 90 of the Employment Act
The claim was a continuing wrong capable of redress; the limitation argument was rejected
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.
Whether the quantum awarded (Kshs. 652,072.75) was proper
The award was proper; the salary of a bursar is set by the Ministry of Education and the award did not exceed that provision
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the Respondent
- 3.The award of Kshs. 652,072.75 in underpayments by the Learned Magistrate is affirmed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
Costs of both the appeal and the case before the Magistrate's Court to the Appellant
Appeal dismissed with costs to the Respondent
Costs
The Appeal is dismissed with costs to the Respondent.
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.
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.
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.
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.
Issues in the judgment
#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
The Respondent is variously described as an accounts clerk and as a bursar
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.