Jona Wafula Wasike v Turner Barker & Hartfield (1968) Ltd & Another

3. The Claimant instituted the present claim against the Respondents jointly and severally, seeking payment of Kshs. 1,155,065 in respect of salary arrears, underpayment of wages, overtime allowance, severance pay, unlawful deductions and leave allowance. 4. In their Response to the Memorandum of Claim, the Respondents denied having knowledge of the Claimant’s alleged retirement on medical grounds. They further denied that the Claimant served a termination notice or that any monies are due and owing to him. 5. In the premises, the Respondents prayed that the Claimant’s suit be dismissed with costs. The evidence 6. The Claimant testified as CW1 on 18 th May 2026 and adopted his witness statement dated 30 th September 2025 as his evidence-in-chief. He also relied on the documents filed in court in support of his claim. He stated that he had worked continuously for the 1st Respondent from 1995 to 2025. That the Respondents had assessed his terminal dues at Kshs. 39,600. KTL ELRC CAUSE NO. E011 OF 2025 2 JUDGMENT

page 2 of 14

7. He further testified that he had never been involved in any disciplinary proceedings. The Claimant further stated that he worked overtime throughout his employment and that, in 2019, his monthly salary was reduced from Kshs. 31,500 to Kshs. 25,000. He prayed to the court for payment of his terminal dues amounting to Kshs. 1,155,065, as tabulated by his union in a letter addressed to the 1st Respondent dated 12th July 2025. 8. On cross-examination, the Claimant stated that he had retired on medical grounds. He reiterated that he had been underpaid since 2019 and had not received payment for overtime worked. He clarified that he had not been declared redundant and that he had no dispute regarding the statutory deductions made from his salary. He further stated that he did not proceed on leave in 2025. 9. On re-examination, the Claimant stated that the Respondents had not contested the tabulation prepared by the union. He prayed for payment in accordance with the union’s tabulation, together with the costs of the suit. 10. For the Respondents, the 2nd Respondent Navaz Batrudia Dosa, testified as RW1. He adopted his witness statement KTL ELRC CAUSE NO. E011 OF 2025 3 JUDGMENT

page 3 of 14

dated 29th January 2026 as his evidence-in-chief and relied on the bundle of documents filed by the Claimant. RW1 denied that the Claimant was a permanent employee, or that he worked overtime or that he was underpaid. He testified that employees were permitted to proceed on leave upon request and that an employee who opted not to take leave could, upon request, receive payment in lieu thereof. He stated that the Claimant was paid Kshs. 18,900 in lieu of 21 days’ leave in 2022. He denied that the Claimant had ever earned a monthly salary of Kshs. 31,500 or that his salary had been reduced. 11. On cross-examination, RW1 acknowledged that he had received a letter from the Claimant requesting to retire. He stated that, by a letter dated 12th July 2025, he initially informed the Claimant that he was entitled to Kshs. 20,700. However, on 26th July 2025, he revised the amount to Kshs. 39,600. He testified that the Claimant’s monthly salary was Kshs. 27,000 and that the Claimant was last paid in lieu of leave for the year 2022. He acknowledged that the Respondents’ documents did not contain evidence of payment in lieu of leave for 2024 and 2025. KTL ELRC CAUSE NO. E011 OF 2025 4 JUDGMENT

page 4 of 14

12. RW1 stated that he disputed the union’s tabulation from paragraph 4. He nevertheless acknowledged that the Respondents had not indicated in their Response what amount, if any, the Claimant was entitled to. He testified that the Claimant had previously driven a lorry but was transferred to drive a pick-up in 2019. 13. RW1 further testified that the Claimant commenced working for the 1st Respondent in 1995 but was not a permanent employee because he had not been issued with a written contract of employment. According to RW1, the Claimant’s employment could be terminated at any time. He acknowledged that the Claimant worked on Saturdays until 5.00 p.m. and would sometimes drive to Nairobi at night. 14. At the close of the Respondents’ case, the parties were directed to file written submissions. submissions are dated 29th May The 2026, Claimant’s while the Respondents’ submissions are dated 18th June 2026. Analysis and determination 15. Having considered the pleadings, evidence and submissions on record, the issues that arise for determination are: - KTL ELRC CAUSE NO. E011 OF 2025 5 JUDGMENT

page 5 of 14

i. Whether the 2nd Respondent is properly joined to these proceedings ii. Whether the Claimant is entitled to the reliefs sought Whether the 2nd Respondent is properly joined to these proceedings 16. It is not disputed that the 1 st Respondent is a limited liability company duly incorporated under the Companies Act. Upon incorporation, a company acquires a legal personality separate and distinct from that of its directors and shareholders. Consequently, the company. And not the directors, bears responsibility for its contractual obligations, including obligations arising from contracts of employment. 17. The Claimant did not plead or establish any fraud, impropriety or other exceptional circumstances that would warrant lifting the corporate veil and imposing personal liability upon the 2nd Respondent. The mere fact that the 2nd Respondent is a director of the 1 st Respondent does not, without more, render him personally liable for the company’s employment-related obligations. KTL ELRC CAUSE NO. E011 OF 2025 6 JUDGMENT

page 6 of 14

18. I therefore find that no cause of action has been established against the 2nd Respondent in his personal capacity. Accordingly, the claim against him is dismissed. Whether the Claimant is entitled to the reliefs sought 19. In his statement of Claim, the Claimant sought Kshs. 1,155,065 in respect of salary arrears, underpayment of wages, overtime allowance, severance pay, unlawful deductions and leave allowance following his retirement from employment. 20. The amounts claimed were tabulated by the Kenya Union of Commercial, Food and Allied Workers in a letter dated 12 th July 2025 at page 7 of the Claimant’s bundle of documents. 21. The Respondents disputed the union’s tabulation and denied that the Claimant was entitled to the amounts claimed. In his testimony, RW1 stated that the Claimant was entitled to terminal dues amounting to Kshs. 39,600. KTL ELRC CAUSE NO. E011 OF 2025 7 JUDGMENT

page 7 of 14

22. It is settled that a claim for monetary relief must be specifically pleaded and proved. The union’s tabulation does not, by itself, establish the Claimant’s entitlement to any of the terminal dues set out therein. 23. I shall therefore consider each claim separately against the pleadings and the evidence presented as hereunder: - i. Salary arrears The Claimant sought salary arrears as part of the sum tabulated by the union. However, in his testimony, he did not identify the months for which his salary remained unpaid or specify the amount outstanding for each month. Accordingly, the claim for salary arrears was not proved and is declined. ii. Underpayment of wages The Claimant testified that his monthly salary was reduced from Kshs. 31,500 to Kshs. 25,000 KTL ELRC CAUSE NO. E011 OF 2025 8 JUDGMENT

page 8 of 14

in 2019. RW1 denied that the Claimant had ever earned Kshs. 31,500 or that his salary had been reduced, maintaining that his monthly salary was Kshs. 27,000. The Claimant did not produce a contract, payslip, bank statement or other evidence demonstrating that his agreed monthly salary was Kshs. 31,500 and had been reduced. The union’s tabulation did not establish the source of that figure or the legal basis upon which the alleged underpayment was calculated. In the circumstances, the claim for underpayment of wages was not proved to the required standard and is declined. iii. Overtime allowance The Claimant testified that he worked overtime throughout his employment without receiving payment. RW1 denied the claim but acknowledged during cross-examination that the Claimant worked on Saturdays until 5.00 KTL ELRC CAUSE NO. E011 OF 2025 9 JUDGMENT

page 9 of 14

p.m. and would sometimes drive to Nairobi at night. RW1’s admission corroborated the Claimant’s evidence that he worked beyond his ordinary working hours. The 1st Respondent, as the employer, was required to maintain and produce records of the Claimant’s working hours. It did not produce attendance registers, work schedules, trip records or evidence showing that the Claimant was compensated for the additional hours worked. Having established that he worked beyond ordinary hours, the evidential burden shifted to the Respondents to rebut the Claimant’s evidence. I therefore find that the Claimant proved his entitlement to overtime allowance and award him the amount claimed under this head which I award at Kshs 80,640. iv. Severance pay KTL ELRC CAUSE NO. E011 OF 2025 10 JUDGMENT

page 10 of 14

Severance pay is provided for under section 40(1)(g) of the Employment Act and is payable where an employee’s service is terminated on account of redundancy. The Claimant acknowledged during cross-examination that he was not declared redundant but retired on medical grounds. Consequently, the Claimant is not entitled to severance pay and the claim under this head is declined. v. Unlawful deductions Although the Claimant sought reimbursement of alleged unlawful deductions, he did not identify the specific deductions complained of or demonstrate how they contravened section 19 of the Employment Act. Indeed, during crossexamination, he stated that he had no complaint regarding the statutory deductions made from his salary. This prayer is therefore accordingly declined. KTL ELRC CAUSE NO. E011 OF 2025 11 JUDGMENT

page 11 of 14

vi. Leave allowance Section 28 of the Employment Act entitles an employee to not less than 21 working days’ annual leave with full pay after every 12 consecutive months of service. Further, under section 10 and 74(1)(f) of the Act, an employer is required to maintain records showing an employee’s annual leave entitlement, the days taken and the remuneration paid in respect thereof. The Claimant testified that he did not proceed on leave in 2025. RW1 stated that employees were permitted either to proceed on leave or, upon request, to receive payment in lieu thereof. He produced evidence showing that the Claimant was paid Kshs. 18,900 in lieu of 21 days’ leave in 2022. On cross-examination, RW1 conceded that the 1st Respondent’s records did not contain evidence that the Claimant proceeded on leave KTL ELRC CAUSE NO. E011 OF 2025 12 JUDGMENT

page 12 of 14

or received payment in lieu of leave for 2023, 2024 and 2025. Since the obligation to maintain and produce leave records rests upon the employer, the Respondents failed to discharge the burden of proving that the Claimant utilised or was paid for his leave entitlement for these years. I therefore find that the Claimant is entitled to payment in lieu of his untaken leave for 2023, 2024 and 2025 at Kshs. 18,900 per year totaling to Kshs 56,700 which I award him. 24. In the end, judgment is entered for the Claimant against the 1st Respondent in the following terms: a. Overtime allowance…………………..…Kshs. 80,640 b. Pay in lieu of untaken leave ………...Kshs. 56,700 Total………………………………..……Kshs. 137,340 c. The claims for salary arrears, underpayment of wages, severance pay and unlawful deductions are declined. KTL ELRC CAUSE NO. E011 OF 2025 13 JUDGMENT

page 13 of 14

d. The Claimant is awarded the costs of the suit. e. The amount awarded shall attract interest at court rates from the date of judgment until payment in full. 25. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 24TH DAY OF SEPTEMBER, 2026 MAUREEN ONYANGO JUDGE KTL ELRC CAUSE NO. E011 OF 2025 14 JUDGMENT

page 14 of 14