https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/465

Angaya v Texas Alarms(K) Ltd (Cause 78 of 2023) [2026] KEMC 465 (KLR) (30 July 2026) (Judgment) Neutral citation: [2026] KEMC 465 (KLR) Republic of Kenya In the Mombasa Law Courts Cause 78 of 2023 EM Mwamuye, SRM July 30, 2026 Between Philip Mark Angaya Claimant and Texas Alarms(K) Limited Respondent Judgment Introduction 1.The Claimant commenced these proceedings by a Memorandum of Claim dated 20th March 2024 seeking judgment against the Respondent for Kshs. 1,094,206.23 comprising alleged underpayments and unpaid overtime accrued during the course of his employment. He also seeks costs of the suit, interest at court rates and any other appropriate relief. 2.The Respondent entered appearance and filed a Memorandum of Response dated 7th August 2024 denying liability and contending that the Claimant was remunerated in accordance with the applicable Regulation of Wages Orders, that overtime was paid whenever it was earned, and that all terminal dues were paid upon his retirement. 3.The matter proceeded to hearing. Although the Respondent had filed its pleadings, witness statement and documentary evidence, it did not attend court during the hearing despite service. Consequently, the hearing proceeded in its absence pursuant to Rule 59 of the Employment and Labour Relations Court (Procedure) Rules. 4.The Claimant testified on oath, adopted his witness statement and produced his bundle of documents as exhibits. The Respondent's case therefore remained as contained in its pleadings, witness statement and filed documents, without oral testimony or cross-examination of the Claimant. 5.The Court has nevertheless considered the entirety of the record, including the pleadings, documentary evidence and written submissions filed by both parties, in determining whether the Claimant has discharged the burden of proof on a balance of probabilities. The Claimant's Case 6.The Claimant pleaded that he was employed by the Respondent on 9th November 2009 as a Night Security Guard stationed in Mombasa. He averred that although he served the Respondent continuously until his retirement, he was never issued with a written contract of employment at the commencement of his employment. 7.He testified that his initial monthly salary was Kshs. 6,000, which was gradually increased over the years. He further stated that on 22nd August 2013 he was promoted to the position of Permanent Guard with effect from 1st September 2013 and became entitled to annual leave, NSSF, NHIF and other employment benefits. 8.The Claimant further testified that by a Notice of Retirement dated 1st December 2022, the Respondent informed him that having attained retirement age, his employment would terminate at the end of June 2023. His last working day was therefore 30th June 2023. 9.According to the Claimant, upon retirement he returned the Respondent's uniform but was not issued with a duly completed clearance form. 10.The Claimant's principal complaint is that throughout his employment he earned wages below those prescribed under the applicable Regulation of Wages (Protective Security Services) Orders between November 2009 and June 2023. 11.He further testified that throughout his employment he worked night shifts from 6.00 p.m. to 6.00 a.m. for six days every week, translating to seventy-two hours weekly. Although he acknowledged that he was occasionally paid overtime for work performed on weekly off-days and public holidays, he maintained that he was never compensated for the additional hours worked during his ordinary working days. 12.Consequently, the Claimant claims:a.Underpayments..........Kshs. 392,840.91b.Unpaid overtime...........Kshs. 701,365.32Total.............Kshs. 1,094,206.23 13.In support of his claim, the Claimant produced, inter alia, his promotion letter dated 22nd August 2013, Notice of Retirement dated 1st December 2022, Certificate of Service dated 3rd July 2023, several payslips, Equity Bank statements, Tabasuri DT SACCO statements, demand letters and a computation of the alleged underpayments and overtime dues. The Respondent's Case 14.The Respondent admits that the Claimant was employed as a Security Guard on 9th November 2009 and was subsequently promoted to Permanent Guard with effect from 1st September 2013. It further admits that the Claimant retired on 30th June 2023 following the Notice of Retirement dated 1st December 2022. The Respondent however disputes the Claimant's assertions that he was underpaid or that overtime remained unpaid. 15.Through the witness statement of Bernard Odhiambo Aduda, its Group Human Resource Manager, the Respondent states that the Claimant was initially employed pursuant to a written letter of appointment dated 9th November 2009. According to the Respondent, the contract expressly provided that the agreed remuneration was inclusive of overtime and house allowance. 16.The Respondent further states that the Claimant worked six days every week and that his salary was periodically revised upwards to comply with the applicable Wage Orders. It is also the Respondent's case that whenever overtime was worked, payment was made and reflected in the Claimant's payslips. 17.Regarding retirement, the Respondent states that after attaining retirement age, the Claimant requested to continue working until the end of June 2023. Following that request, the Respondent issued the retirement notice dated 1st December 2022. 18.The Respondent further states that the Claimant successfully cleared with the company and, at his own request, his terminal dues were deposited into his Tabasuri account. A Certificate of Service dated 3rd July 2023 was thereafter issued. The Respondent consequently prays that the entire claim be dismissed with costs. Written Submissions 19.The Claimant submits that the employer-employee relationship is undisputed and that the evidence establishes continuous employment between 9th November 2009 and 30th June 2023. 20.On underpayments, the Claimant submits that the salaries reflected in his payslips and bank statements remained below the statutory minimum wages prescribed under the applicable Wage Orders throughout the period of employment. He contends that the Respondent failed to produce payroll records capable of disproving his computation and therefore seeks an award of Kshs. 392,840.91. 21.On overtime, the Claimant submits that his letter of employment required him to work twelve-hour night shifts from 6.00 p.m. to 6.00 a.m. for six days every week, amounting to seventy-two hours weekly, whereas the applicable Wage Orders permitted a maximum of sixty hours over six days. Relying on Christopher Komen Chebet v Brinks Security Services Limited, ELRC Cause No. 215 of 2016 (relied upon by the Claimant), he argues that the additional hours worked each day constituted compensable overtime. He therefore seeks Kshs. 701,365.32. 22.The Respondent, on the other hand, submits that the Claimant has failed to discharge the burden of proving either underpayment or unpaid overtime. It argues that the payslips produced by both parties demonstrate that the Claimant's remuneration met or exceeded the prescribed minimum wage and that house allowance was separately reflected as part of his gross salary. 23.The Respondent further submits that overtime was paid whenever earned, that the Claimant consistently enjoyed four off-days each month as reflected in the payslips, and that no duty rosters, attendance records or work schedules were produced to establish that the Claimant worked seventy-two hours every week throughout the thirteen-year period. Issues for Determination 24.Having carefully considered the pleadings, the oral testimony of the Claimant, the documents produced by both parties and the written submissions filed herein, the Court finds that the issues falling for determination are:i.Whether the Claimant was underpaid during his employment.ii.Whether the Claimant proved his claim for overtime.iii.Whether the Claimant is entitled to the reliefs sought. Whether the Claimant was underpaid 25.The Claimant pleaded that throughout his employment, spanning from 9th November 2009 to 30th June 2023, he was remunerated below the minimum wages prescribed under the various Regulation of Wages (Protective Security Services) Orders. He consequently sought Kshs.392,840.91 as salary underpayments. 26.In support of the claim, the Claimant produced payslips, bank statements and a computation prepared on his behalf. He submitted that his salary progression was Kshs.6,000, Kshs.7,000, Kshs.8,000, Kshs.10,000, Kshs.13,900 and finally Kshs.14,900, all of which allegedly fell below the prescribed statutory minimum wages during the relevant periods. 27.The Respondent denied the allegation and maintained that the Claimant's salary was revised from time to time in accordance with the prevailing Wage Orders. It further contended that the Claimant's computation merely compared gross figures without undertaking the statutory exercise required to demonstrate an actual underpayment. (Relied upon by the Respondent). 28.The Court has examined the documentary evidence produced by both parties. The Respondent's own payslips consistently indicate the following salary progression: Gross salary of Kshs.11,220; Gross salary of Kshs.12,680; Gross salary of Kshs.13,900; and Gross salary of Kshs.14,900. 29.The payslips further demonstrate that the salary was broken down into basic salary and house allowance, with separate entries for house allowance appearing throughout the employment period. They also demonstrate periodic salary increments during the Claimant's employment. 30.Although the Claimant produced a schedule computing alleged underpayment, the Court notes that no detailed comparative analysis was undertaken identifying, for each Wage Order applicable during the period in question: the prescribed minimum wage; the prescribed house allowance where applicable; the actual wage received; and the resulting shortfall. 31.The Court agrees with the Respondent that a claim founded upon alleged statutory underpayment must be supported by a clear comparison between the applicable Wage Order and the actual remuneration received. Mere production of a global computation, without demonstrating how each figure was arrived at by reference to the relevant Wage Orders, does not sufficiently discharge the evidential burden. (See Securex Agencies (K) Ltd v Naomi Mwende Katua (Relied upon by the Respondent)). 32.The Court further notes that the Respondent's payslips consistently reflect payment of house allowance separately from the basic wage, thereby rebutting the allegation that house allowance was omitted altogether. 33.The burden remained upon the Claimant under Sections 107 and 109 of the Evidence Act to establish the specific periods during which he was underpaid and the precise extent of such underpayment. The evidence placed before Court falls short of that standard. 34.Accordingly, the claim for underpayment is not proved on a balance of probabilities and is declined. Whether the Claimant proved the claim for overtime 35.The Claimant testified that throughout his employment he worked from 6.00 p.m. to 6.00 a.m., six days every week, amounting to seventy-two (72) hours weekly. He contended that although he occasionally received payment for work performed on rest days and public holidays, he was never compensated for the ordinary overtime worked beyond the statutory maximum hours. He consequently sought Kshs.701,365.32 being unpaid overtime. In support, he relied upon Christopher Komen Chebet v Brinks Security Services Ltd (Relied upon by the Claimant). 36.The Respondent denied the claim. It relied upon the contract of employment which stated that remuneration was inclusive of overtime and further contended that overtime, whenever earned, was separately paid and reflected in the monthly payslips. It also submitted that the Claimant failed to produce attendance registers, duty rosters or any other records demonstrating the actual overtime worked. It relied upon Securex Agencies (K) Ltd v Naomi Mwende Katua, Samuel Karanja Githuiya v Securex Agencies Ltd, Titus Mbuvi Munyoki v Kenya Commercial Bank Ltd, Kenya Ports Authority v Festus Owino Ouma, Interchemie EA Ltd v Jacinta Achieng Omondi, and Nairobi City Council v Thabiti Enterprises Ltd (all relied upon by the Respondent). 37.The Court has carefully examined the Respondent's payslips. They consistently contain separate entries for: Off days; Public holidays; and overtime. 38.The documentary evidence demonstrates that overtime was indeed paid in several months. For example, the payslips show overtime payments in November 2014, April 2017, May 2017, June 2017, July 2017, August 2017, September 2017 and October 2017. Conversely, numerous payslips reflect no overtime payment at all. 39.These records lead the Court to two conclusions. First, despite the contractual clause referring to remuneration as inclusive of overtime, the Respondent's own payroll records demonstrate that overtime was treated as a distinct earning whenever it accrued. The Respondent therefore cannot successfully rely upon that contractual clause to contend that overtime was never separately payable. 40.Secondly, however, the fact that overtime appears intermittently in the payslips does not by itself establish that the Claimant worked unpaid overtime throughout the entire thirteen-year period claimed. 41.The Claimant's evidence was that he worked twelve-hour shifts continuously. However, beyond that assertion, no duty schedules, deployment rosters, attendance registers or other contemporaneous records were produced from which the Court could ascertain the precise overtime worked but left unpaid. 42.The Court appreciates that under Section 74 of the Employment Act the employer bears the statutory obligation of keeping employment records. Nevertheless, where the employer produces payroll records showing payment of overtime on various occasions, the employee must still lay a factual foundation demonstrating why those payments were insufficient and identify the specific overtime allegedly omitted. 43.The computation presented by the Claimant assumes uninterrupted overtime throughout the employment period without reconciling the overtime, rest-day and holiday payments already reflected in the Respondent's payroll records. 44.The Court therefore finds that although the Claimant established that he worked overtime on certain occasions, he failed to prove, on a balance of probabilities, that he remained unpaid for overtime in the sum claimed. Accordingly, the claim for Kshs.701,365.32 being overtime pay also fails. Reliefs 45.Having found that neither the claim for underpayment nor the claim for overtime has been proved, the Court finds that none of the monetary reliefs sought are available. 46.The Court nevertheless notes that the Respondent issued the Claimant with a Certificate of Service upon retirement and there is no dispute regarding his retirement benefits outside the present claims. The claim is therefore dismissed. 47.Considering the long employment relationship between the parties and the nature of the dispute, the Court is of the view that each party shall bear its own costs. Disposition 48.In the result, Judgment is entered as follows:i.The claim for salary underpayment amounting to Kshs.392,840.91 is dismissed.ii.The claim for overtime amounting to Kshs.701,365.32 is dismissed.iii.Consequently, the entire Memorandum of Claim is dismissed.iv.Each party shall bear its own costs.v.Interest is declined.It is so ordered. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOSFT TEAMS AT MOMBASA THIS 30TH JULY 2026.****……………………………………………….****EMILY M. MWAMUYE****SENIOR RESIDENT MAGISTRATE