[2020] KEELRC 1525 (KLR)
The court found that the claimant's claim for overtime compensation constituted a claim for special damages, which must be specifically pleaded and strictly proved. The only evidence provided by the claimant was an overtime form bearing his name, but he failed to demonstrate a clear connection between the form and...
Source-derived case information.
- Citation
- [2020] KEELRC 1525 (KLR)
- Parties
- Claimant: George Ogonda Opiyo; Respondent: China Dalian International Economic & Technical Group Ltd Bachuma Gate Project; Interested Party: CAS Consultant Engineering Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 134 of 2018
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- claim dismissed
- Judges
- L Ndolo
- Legal Topics
- Overtime Compensation, Special Damages, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Ogonda Opiyo
Claimant
China Dalian International Economic & Technical Group Ltd Bachuma Gate Project
Respondent
CAS Consultant Engineering Ltd
Interested Party
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant is entitled to overtime compensation for the period between November and December 2017.
- 2 Whether the claimant has specifically pleaded and proved special damages as required by law.
Ratio Decidendi
The court found that the claimant's claim for overtime compensation constituted a claim for special damages, which must be specifically pleaded and strictly proved. The only evidence provided by the claimant was an overtime form bearing his name, but he failed to demonstrate a clear connection between the form and the amount claimed from the respondent. As a result, the court held that the claimant had not proved his claim to the required legal standard. Consequently, the claim was dismissed for lack of proof.
Court Disposition
claim dismissed
Orders
- The claim is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT MOMBASA
CAUSE NO 134 OF 2018
GEORGE OGONDA OPIYO......................................................................CLAIMANT
VS
CHINA DALIAN INTERNATIONAL ECONOMIC & TECHNICAL GROUP LTD
BACHUMA GATE PROJECT..............................................................RESPONDENT
AND
CAS CONSULTANT ENGINEERING LTD...........................INTERESTED PARTY
JUDGMENT
Introduction
1. By a Statement of Claim dated 9th March 2018 and filed in court on 14th March 2018, the Claimant seeks payment of overtime compensation in the sum of Kshs. 67,932.
2. Neither the Respondent nor the Interested Party filed a response. The matter therefore proceeded by way of formal proof.
The Claimant’s Case
3. The Claimant states that he was employed by the Interested Party as a Road Inspector on 2nd March 2015. The Claimant further states that the Interested Party was a consultant in the Maji ya Chumvi-Bachuma Gate Road Project, where the Respondent was a contractor.
4. The Claimant adds that there was an arrangement between the Respondent and Interested Party that the Interested Party would pay the Claimant’s salary component for normal working hours from 8. 00 am to 5. 00 pm. Under this arrangement, the Respondent was to pay the Claimant for any overtime worked.
5. The Claimant states that the Respondent had paid his overtime save for the period between November and December 2017.
6. The Claimant therefore claims the sum of Kshs. 67,932 in overtime compensation for the stated period.
7. The Claimant also asks for costs and interest.
Findings and Determination
8. The Claimant’s claim in this case is for overtime compensation which falls within the category of special damages.
9. In Richard Okuku Oloo v South Nyanza Sugar Co. Ltd [2013] eKLR, the Court of Appeal restated the well-grounded principle that special damages must be specifically pleaded and proved with a degree of certainty and particularity.
10. In this case all the Claimant did was to file a copy of overtime form bearing his name. He however did not demonstrate any nexus between the contents of the form and the amount he now claims from the Respondent.
11. Overall, I find and hold that the Claimant has not proved his claim to the required standard. The claim therefore fails and is dismissed.
12. I make no order for costs.
13. Orders accordingly.
DATED SIGNED AND DELIVERED AT MOMBASA THIS 27TH DAY FEBRUARY 2020
LINNET NDOLO
JUDGE
Appearance:
Mr. Muchiri for the Claimant
No appearance for the Respondent