Sgs Security Guards Services Ltd v Chepkemoi (Employment and Labour Relations Appeal E119 & E133 of 2024 (Consolidated)) [2025] KEELRC 1362 (KLR) (9 May 2025) (Judgment)

Key Facts

Issues

• Whether the appeal was merited and the court's determination on the costs.
• Whether the trial court erred in awarding house allowance to the respondent.
• Whether the cross-appeal was merited and the court's determination on the costs.
• Whether the cross-appellant was entitled to payment for unpaid leave, overtime, public holidays, leave travel allowance, unremitted NSSF dues, and rest days.

Holdings

• The claim for unremitted NSSF dues (Kshs. 400) is disallowed. The court upheld the trial court's decision, citing reliance on the Simiyu v Nzoia Sugar Company Limited case, and directed the claimant to lodge the matter with NSSF directly.
• The appeal regarding the award of housing allowance is allowed. The court found that the trial court erred in awarding housing allowance as the salary of Kshs. 18,000 was above the minimum wage and inclusive of all allowances. The cross-appeal's claim for housing allowance is dismissed.
• The cross-appeal for untaken leave and leave travel allowance is partially allowed. The court awarded Kshs. 24,900 (Kshs. 21,600 for untaken leave and Kshs. 3,300 for travel allowance) with interest. This was based on the Respondent working as a casual employee without leave entitlements for six years.

Remedies

• The court awarded the Respondent Ksh 24,900 for untaken leave and leave travel allowance as part of the cross-appeal.
• The court disallowed the claim for unremitted NSSF dues, directing it to be lodged with NSSF instead.
• The court dismissed the claim for house allowance, upholding the appeal by the Appellant.
• The court ordered each party to bear their own costs in the appeal and cross-appeal.

Monetary Damages

Legal Principles

• The court applied the principle that in civil claims, the party seeking judgment must prove their allegations to the balance of probability standard. Specifically, under section 47 of the Employment Act, the burden of proving unfair termination rests on the employee, while the employer must justify termination grounds. The court upheld this in dismissing the claim for overtime and public holidays due to lack of evidence from the cross-appellant.
• The court relied on presumptions regarding consolidated salaries under the Minimum Wage Order, noting that a salary above the minimum wage may be presumed inclusive of certain allowances (e.g., housing). This was central to the decision that the house allowance claim failed, as the salary of Kshs. 18,000 was deemed to already include it.

Precedent Name

• Javan Were Mbango V H. Young & Co. (Ea) Ltd
• Patrick Nambila Mikuzi V Ashton Court Apartments Limited
• Rogoli Ole Manadiegi v General Cargo Services Limited
• Nicholus Kipkemoi Korir-Vs-Hatari Security Guards Limited
• Mbogo v Shah
• Selle v Associated Motor Boat Co. Ltd
• Ochieng & another v Pride Kings Services Ltd

Cited Statute

• Regulation of Wages (General) (Amendment) Order, 2015, 2017, 2018, and 2022
• Employment Act
• Labour Institution Act
• NSSF Act (Cap 258)
• Evidence Act

Judge Name

Passage Text

• "The appellate court is not bound necessarily to accept the findings of fact by the court below... the court must reconsider the evidence, evaluate it itself and draw its own conclusions."
• "The minimum wage for a cleaner during the period of the Claimant's employment was below the salary he received. I find that the said salary was indeed consolidated and inclusive of house allowance. The claim for house allowance fails and is dismissed."
• "The learned Magistrate erred in law and in fact in disregarding the evidence that the Respondent kept all the job attendance and time sheet records... The Appellant never filed any documents/records to rebut the Claim for overtime."