[2019] KEELRC 41 (KLR)
The Court found that the Respondent failed to discharge the statutory burden of proving payment of overtime by not producing itemised pay statements or any evidence to that effect. The Respondent also failed to demonstrate that it would suffer substantial loss if the stay was not granted. Consequently, the...
Source-derived case information.
- Citation
- [2019] KEELRC 41 (KLR)
- Parties
- Applicant: Charles Nyaringo Rianga; Respondent: Hatari Security Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1305 of 2017
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the claimant
- Judges
- MSA Makhandia
- Legal Topics
- Overtime Pay, Burden of Proof, Itemised Pay Statement, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Nyaringo Rianga
Applicant
Hatari Security Ltd
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the Respondent is entitled to a stay of execution pending appeal.
- 2 Whether the Respondent demonstrated substantial loss if stay is not granted.
- 3 Whether the Respondent discharged the statutory burden regarding payment of overtime.
Ratio Decidendi
The Court found that the Respondent failed to discharge the statutory burden of proving payment of overtime by not producing itemised pay statements or any evidence to that effect. The Respondent also failed to demonstrate that it would suffer substantial loss if the stay was not granted. Consequently, the application for stay of execution pending appeal lacked merit and was dismissed with further costs to the Claimant.
Court Disposition
application dismissed with costs to the claimant
Orders
- The application for stay of execution is dismissed.
- The Respondent shall pay further costs to the Claimant.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 1305 OF 2017
CHARLES NYARINGO RIANGA...............................................CLAIMANT
VERSUS
HATARI SECURITY LTD......................................................RESPONDENT
RULING
1. When this Cause was heard on 2 October 2019, the Respondent opted to close its case without leading any evidence. By failing to lead evidence the Respondent failed to discharge the burden placed on employers by sections 10(3),(7),11,17,20 (on itemised pay statement), 43 and 45 of the Employment Act, 2007.
2. In a judgment delivered on 1 November 2019, the Court found the Respondent in breach of contract/statute in failing to pay the Claimant overtime. In the said judgment, the Court took judicial notice of the notorious fact that security guards/watchmen in this country work in 12 hour shifts including during public holidays.
3. The Respondent has now filed an application seeking stay of execution pending the filing of an Intended Appeal.
4. The Court has given due consideration to the application and finds that apart from lacking merit (if the Respondent had issued itemised pay statements to the Claimant and filed copies in Court, it would have easily discharged the burden of showing payment for the overtime claimed), the Respondent has not demonstrated that it will suffer substantial loss if a stay order is not issued.
5. The application is dismissed with further costs to the Claimant.
Delivered, dated and signed in Nairobi on this 19th day of December 2019.
Radido Stephen
Judge
Appearances
For Claimant Mr. Nyabena instructed by Nyabena Alfred & Co. Advocates
For Respondent Mr. Kahindi instructed by Maura, Muthoni, Mikhala, Faraji & Associates
Court Assistant Muturi