https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1714

Happi & 17 others v Proto Energy Ltd (Cause E836 of 2023) [2026] KEELRC 1714 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1714 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause E836 of 2023 JW Keli, J June 19, 2026 Between Sofia Fugicha Happi 1st Claimant Haron Kidai Mwachoni 2nd Claimant Daniel Kahindi Charo 3rd Claimant Elphas Anyoso Ollinga 4th Claimant David Njiru John 5th Claimant Philip Ntimama Parteroi 6th Claimant Melvin Jelagat Rotich 7th Claimant Evans Tajeuwo Munke 8th Claimant Zachariah Ombati Misiani 9th Claimant Ibrahim Otengo Lukunga 10th Claimant Irene Nangheke Juma 11th Claimant Abdirahim Noor Mohammed 12th Claimant Electine Sagina Shikoli 13th Claimant Ezekiel Kishapui Mayasek 14th Claimant Emmanuel Ronoh 15th Claimant Ojala Odongo Alfred 16th Claimant Brian Chimega Chilmo 17th Claimant Mary Njeri Kibe 18th Claimant and Proto Energy Limited Respondent Judgment 1.Vide a statement of claim dated the 20th of October 2023, the Claimants sued the Respondent and sought the following Orders:-a.A Declaration that the termination of each Claimant's Services with the Respondent was wrongful, unconstitutional, unjustifiable, illegal and unfair;b.A Declaration that any statements agreed to by the claimants that payments made to them were in full and final settlement of all claims they had against the respondent are null and void as there was no consensus ad idem between the Claimants and Respondent;c.An Order for Compensation to each Claimant for wrongful, unlawful and/ or unfair termination of employment at the statutory rate of 12 months' salary as more particularly calculated below:i.1st Claimant - Ksh 56,000 multiply by 12 = 672,000/=ii.2nd Claimant - Ksh. 31, 500 multiply by 12 = 378,000/=iii.3rd Claimant - Ksh. 25,000 multiply by 12 = 300,000/=iv.4th Claimant - Ksh. 31,500 multiply by 12 = 378,000/=v.5th Claimant - Ksh. 40,000 multiply by 12 = 480,000/=vi.6th Claimant - Ksh. 53, 250 multiply by 12 = 639,000/=vii.7th Claimant - Ksh. 31,500 multiply by 12 = 378,000/=viii.8th Claimant - Ksh. 31,500 multiply by 12 = 378,000/=ix.9th Claimant - Ksh. 31,500 multiply by 12 = 378,000/=x.10th Claimant- Ksh. 50,000 multiply by 12 = 600,000/=xi.11th Claimant - Ksh. 31,500 multiply by 12 = 378,000/=xii.12th Claimant - Ksh. 31,500 multiply by 12 = 378,000/=xiii.13th Claimant - Ksh. 31,500 multiply by 12 = 378,000/=xiv.14th Claimant - Ksh. 31,500 multiply by 12 = 378,000/=xv.15th Claimant - Ksh. 31,500 multiply by 12 = 378,000/=xvi.16th Claimant - Ksh. 31,500 multiply by 12 = 378,000/=xvii.17th Claimant - Ksh. 31,500 multiply by 12 = 378,000/=xviii.18th Claimant - Ksh. 31,500 multiply by 12 = 378,000/=;d.An Order that the Claimants be individually compensated by payment of Overtime Dues in arrears from the dates of their individual Employment to that of Termination as tabulated in the Particulars of the Claimants' Overtime Dues above;e.General damages;f.Interests on the amounts prayed c, d and e above;g.Costs of this Suit; andh.Such other relief as this Honourable Court may deem just and fit. 2.The Claimants in support of the claim filed their list of witnesses dated 20th October 2023; list of documents of the same date as the bundle of documents attached; and the witness statements of each Claimant bearing various dates. 3.The Respondent entered appearance through the law firm of Munyao Muthama & Kashindi Advocates on 1st November 2023 and filed an amended statement of response dated 26th March 2024. In support of their response, they filed a witness statement of CATHERINE MWANIKI dated 26th April 2024; and a list and bundle of documents dated 26th March 2024. 4.To counter the Respondent’s amended response, the Claimant filed a reply dated 13th August 2024. 5.Through a partial consent dated 15th December 2025, the parties settled the Claimants claim under the head of unfair termination, and deemed the reliefs sought under prayers a, b, c, e, f and h of the statement of claim as settled. The issue remaining for determination therefore, is the question of overtime payments. The Claimant’s case in summary 6.The Claimants’ case is that they were employed by the Respondent who terminated their employment on account of redundancy vide a Termination Notice dated 14th July 2021 served upon the Claimants. In the termination letters dated 14th July 2021, the Claimants’ benefits were enumerated as follows: payment for the days worked until 13th August 2021; payment for accrued and unutilized leave days as at 13th August 2021; severance pay for fifteen days for every complete year of service with the company from the date of joining; one month in lieu of notice; less damage or surcharge if any; any other monies the company may owe you; and certificate of service. The Claimants state that their individual contracts contained a specific number working hours per week, but they were compelled by the Respondent to work overtime, without pay. They therefore seek overtime dues from the time when their respective employments commenced to the date of termination. 7.The Claimant’s complaint is that prior to their termination on account of redundancy, the Respondent never engaged them jointly and/or individually in any discussion on the intended redundancy, and failed to comply with the statutory conditions for redundancy under Section 40 of the Employment Act, including the requirement to inform the Labour Office of the intended redundancy. 8.The Claimants challenge the Respondent’s claim that the termination of their employment was a result of the Respondent's "strategic plan and performance contracting leading to restructuring and reorganization of operations", as this strategic plan was not brought to the Claimants' attention nor were they invited to be actively involved in the reorganization process prior to their termination. Further, it is averred that the Respondent replaced the Claimants immediately after their termination on account of redundancy with other individuals who performed the same tasks as them. As such, their individual positions were not extinguished as alleged which indicates that there was no valid redundancy, but rather an unfair termination of employment. 9.It is the Claimants’ case that the Respondent not only failed to comply with the requirements of Section 40 of the Employment Act No. 11 of 2007, but also violated the Claimants’ right to fair labour practices. 10.The Claimants' seek payment of their overtime dues as follows:a.1st Claimant Sofia Fugicha Happii.Commenced her employment on 22nd October 2018 at a monthly salary of Kshs.39,765/= thus a daily salary of Kshs. 1,529 / = and an hourly salary of Kshs. 204/ = which salary was applicable until end of July 2019. As from 1st August 2019, the 1st Claimant received a salary increment to Kshs. 56,000/=.ii.Weekly contractual working hours - Forty-five (45) hours per week that is 7 1/2 hours daily;iii.Actual number of hours worked daily -12 hours;iv.Actual Number of hours worked per week - 6 days multiply by 12 hours worked every day = Seventy-two (72) hours;v.Number of weekly overtime hours - Twenty-Seven (27) hours;vi.Total Number of overtime hours between date of employment (22/10/2018) and date when she was issued with a salary increment (End of July 2019) -1089 hours;vii.Total Overtime Unpaid Arrears as of July 2019 before salary increment = Kshs. 333, 234/=;viii.Total Number of Overtime Hours between August 2019 and 14 July 2021 = 2749 hrs;ix.Total Overtime Unpaid Arrears between August 2019 and 14 July 2021= Kshs. 1.184,184/= (23 1/2 months (611 days) multiply by 4 1/2 overtime hours daily multiply by hourly salary (Kshs. 287.00) multiply by 1.5);x.Total Overtime Unpaid Arrears between date of employment and date of termination (22nd October 2018 and 14 July 2021) Kshs. 1, 184,184 + Kshs. 333, 234= Kshs. 1, 517, 418.b.2nd Claimant - Haron Kidai Mwachonii.Commenced his employment on 17th September 2018 at a monthly salary of Kshs. 31,500/= thus a daily salary of Kshs. 1,211 / = and an hourly salary of Kshs. 151/ =;ii.Weekly contractual working hours – Fifty-Two (52) hours per week that is 8 hours daily;iii.Actual number of hours worked daily -12 hours;iv.Actual Number of hours worked per week - 6 days multiply by 12 hours worked every day = Seventy-two (72) hours;v.Number of weekly overtime hours - Twenty-Four (24) hours;vi.Total Overtime Unpaid Arrears between date of employment and date of termination (17th September 2018 and 14 July 2021) (3588 hours multiply by Kshs. 151 per hour multiply by 1.5) = Kshs. 812, 682/=.c.3rd Claimant – Daniel Kahindi Charoi.Commenced his employment on 17th September 2018 at a monthly salary of Kshs. 25,000/= thus a daily salary of Kshs. 961 / = and an hourly salary of Kshs. 120/ =;ii.Actual number of hours worked daily -12 hours;iii.Shift payments monthly – Kshs. 10,000/-;iv.Total Overtime Unpaid Arrears between date of employment and date of termination (17th September 2018 and 14 July 2021) (3588 hours multiply by Kshs. 120 per hour multiply by 1.5) = Kshs. 645,840/=.d.4th Claimant – Elphas Anyoso Ollingai.Commenced his employment on 1st April 2020 at a monthly salary of Kshs. 31,500/= thus a daily salary of Kshs. 1,211 /= and an hourly salary of Kshs. 151/ =;ii.Weekly contractual working hours – Fifty-Two (52) hours per week that is 8 hours daily;iii.Actual number of hours worked daily -12 hours;iv.Actual Number of hours worked per week - 6 days multiply by 12 hours worked every day = Seventy-two (72) hours;v.Number of weekly overtime hours - Twenty-Four (24) hours;vi.Total Overtime Unpaid Arrears between date of employment and date of termination (1st April 2020 and 14 July 2021) (1508 hours multiply by Kshs. 151 per hour multiply by 1.5) = Kshs. 341,562/=.e.5th Claimant – David Njiru Johni.Commenced his employment on 1st March 2020 at a monthly salary of Kshs. 31,500/= thus a daily salary of Kshs. 1,211 / = and an hourly salary of Kshs. 151/ = which salary was applicable until January 2021when he received a salary increment to Kshs. 40,000/= thus an hourly salary of Kshs. 192/=;ii.Weekly contractual working hours – Fifty-Two (52) hours per week that is 8 hours daily;iii.Actual number of hours worked daily -12 hours;iv.Number of daily overtime hours - Four (4) hours;v.Total Number of overtime hours between date of employment (1/3/2020) and date when she was issued with a salary increment (End of January 2021) -1144 hours;vi.Total Overtime Unpaid Arrears as of January 2020 before salary increment = Kshs. 259,116/=;vii.Total Number of Overtime Hours between February 2021 and 14 July 2021 = 572 hrs;viii.Total Overtime Unpaid Arrears between February 2021 and 14 July 2021= Kshs. 164,736/=;ix.Total Overtime Unpaid Arrears between date of employment and date of termination (1st March 2020 and 14 July 2021) Kshs. 259,116/= + Kshs. 164,736/= = Kshs. 423,852/=.f.6th Claimant – Philip Ntimama Parteroii.Commenced his employment on 1st March 2020 at a monthly salary of Kshs. 53,250/= thus a daily salary of Kshs. 2,048 / = and an hourly salary of Kshs. 256/=;ii.Weekly contractual working hours – Fifty-Two (52) hours per week that is 8 hours daily;iii.Actual number of hours worked daily -12 hours;iv.Actual Number of overtime hours per day - Four (4) hours;v.Total Number of overtime hours between date of employment and date of termination (1st March 2020 and 14 July 2021) – 1716 hours;vi.Total Overtime Unpaid Arrears between date of employment and date of termination (1st March 2020 and 14 July 2021) (1716 hours multiply by Kshs. 256 per hour multiply by 1.5) = Kshs. 658,944/=.g.7th Claimant – Melvin Jelagat Rotichi.Commenced his employment on 8th January 2020 at a monthly salary of Kshs. 31,500/= thus a daily salary of Kshs. 1,211/ = and an hourly salary of Kshs. 151/ =;ii.Weekly contractual working hours – Fifty-Two (52) hours per week that is 8 hours daily;iii.Actual number of hours worked daily -12 hours;iv.Actual Number of overtime hours per day - Four (4) hoursv.Total Number of overtime hours between date of employment and date of termination (8th January 2020 and 14 July 2021) – 1896 hours;vi.Total Overtime Unpaid Arrears between date of employment and date of termination (8th January 2020 and 14 July 2021) (1896 hours multiply by Kshs. 151 per hour multiply by 1.5) = Kshs. 429,444/=h.8th Claimant – Evans Tajewuo Munkei.Commenced his employment on 1st October 2019 at a monthly salary of Kshs. 31,500/= thus a daily salary of Kshs. 1,211/ = and an hourly salary of Kshs. 151/ =;ii.Weekly contractual working hours – Fifty-Two (52) hours per week that is 8 hours daily;iii.Actual number of hours worked daily -12 hours;iv.Actual Number of overtime hours per day - Four (4) hoursv.Total Number of overtime hours between date of employment and date of termination (1st October 2019 and 14 July 2021) – 2236 hours;vi.Total Overtime Unpaid Arrears between date of employment and date of termination (1st October 2019 and 14 July 2021) (2236 hours multiply by Kshs. 151 per hour multiply by 1.5) = Kshs. 506,454/=i.9th Claimant – Zachariah Ombati Misianii.Commenced his employment on 1st October 2019 at a monthly salary of Kshs. 31,500/= thus a daily salary of Kshs. 1,211/ = and an hourly salary of Kshs. 151/ =;ii.Weekly contractual working hours – Fifty-Two (52) hours per week that is 8 hours daily;iii.Actual number of hours worked daily -12 hours;iv.Actual Number of overtime hours per day - Four (4) hoursv.Total Number of overtime hours between date of employment and date of termination (1st October 2019 and 14 July 2021) – 2236 hours;vi.Total Overtime Unpaid Arrears between date of employment and date of termination (1st October 2019 and 14 July 2021) (2236 hours multiply by Kshs. 151 per hour multiply by 1.5) = Kshs. 506,454/=j.10th Claimant – Ibrahim Otengo Lukungai.Commenced his employment on 1st October 2019 at a monthly salary of Kshs. 31,500/= thus a daily salary of Kshs. 1,211/ = and an hourly salary of Kshs. 151/ = which salary was applicable until the end of July 2020 when he received a salary increment to Kshs. 50,000/= thus a daily salary of Kshs. 1,923/= and an hourly salary of Kshs. 240/=;ii.Weekly contractual working hours – Fifty-Two (52) hours per week that is 8 hours daily;iii.Actual number of hours worked daily -12 hours;iv.Actual Number of overtime hours per day - Four (4) hoursv.Total Number of overtime hours between date of employment (1/10/2019) and date when she was issued with a salary increment (End of July 2020) -1040 hours;vi.Total Overtime Unpaid Arrears as of July 2020 before salary increment = Kshs. 235,560/=;vii.Total Number of Overtime Hours between August 2020 and 14 July 2021 = 1196 hrs;viii.Total Overtime Unpaid Arrears between August 2020 and 14 July 2021 = Kshs. 430,560/=;ix.Total Overtime Unpaid Arrears between date of employment and date of termination (1st October 2019 and 14 July 2021) Kshs. 235,560/= + Kshs. 430,560/= = Kshs. 666,120/=.k.11th Claimant – Irene Nangekhe Jumai.Commenced her employment on 1st October 2019 at a monthly salary of Kshs. 31,500/= thus a daily salary of Kshs. 1,211/ = and an hourly salary of Kshs. 151/ =;ii.Weekly contractual working hours – Fifty-Two (52) hours per week that is 8 hours daily;iii.Actual number of hours worked daily -12 hours;iv.Actual Number of overtime hours per day - Four (4) hoursv.Total Number of overtime hours between date of employment and date of termination (1st October 2019 and 14 July 2021) – 2236 hours;vi.Total Overtime Unpaid Arrears between date of employment and date of termination (1st October 2019 and 14 July 2021) (2236 hours multiply by Kshs. 151 per hour multiply by 1.5) = Kshs. 506,454/=l.12th Claimant – Abdirahim Noor Mohammedi.Commenced his employment on 1st October 2019 at a monthly salary of Kshs. 31,500/= thus a daily salary of Kshs. 1,211/ = and an hourly salary of Kshs. 151/ =;ii.Weekly contractual working hours – Fifty-Two (52) hours per week that is 8 hours daily;iii.Actual number of hours worked daily -12 hours;iv.Actual Number of overtime hours per day - Four (4) hoursv.Total Number of overtime hours between date of employment and date of termination (1st October 2019 and 14 July 2021) – 2236 hours;vi.Total Overtime Unpaid Arrears between date of employment and date of termination (1st October 2019 and 14 July 2021) (2236 hours multiply by Kshs. 151 per hour multiply by 1.5) = Kshs. 506,454/=m.13th Claimant – Electine Sagina Shikolii.Commenced her employment on 1st March 2020 at a monthly salary of Kshs. 31,500/= thus a daily salary of Kshs. 1,211/ = and an hourly salary of Kshs. 151/ =;ii.Weekly contractual working hours – Fifty-Two (52) hours per week that is 8 hours daily;iii.Actual number of hours worked daily -12 hours;iv.Actual Number of overtime hours per day - Four (4) hoursv.Total Number of overtime hours between date of employment and date of termination (1st March 2020 and 14 July 2021) – 1716 hours;vi.Total Overtime Unpaid Arrears between date of employment and date of termination (1st March 2020 and 14 July 2021) (1716 hours multiply by Kshs. 151 per hour multiply by 1.5) = Kshs. 388,674/=n.14th Claimant – Ezekiel Kishapui Mayaseki.Commenced his employment on 7th October 2019 at a monthly salary of Kshs.31,500/= thus a daily salary of Kshs. 1,211/ = and an hourly salary of Kshs. 151/ =;ii.Weekly contractual working hours – Fifty-Two (52) hours per week that is 8 hours daily;iii.Actual number of hours worked daily -12 hours;iv.Actual Number of overtime hours per day - Four (4) hoursv.Total Number of overtime hours between date of employment and date of termination (7th October 2019 and 14 July 2021) – 2212 hours;vi.Total Overtime Unpaid Arrears between date of employment and date of termination (7th October 2019 and 14 July 2021) (2212 hours multiply by Kshs. 151 per hour multiply by 1.5) = Kshs. 501,018/=o.15th Claimant – Emmanuel Ronohi.Commenced his employment on 1st October 2019 at a monthly salary of Kshs. 31,500/= thus a daily salary of Kshs. 1,211/ = and an hourly salary of Kshs. 151/ =;ii.Weekly contractual working hours – Fifty-Two (52) hours per week that is 8 hours daily;iii.Actual number of hours worked daily -12 hours;iv.Actual Number of overtime hours per day - Four (4) hoursv.Total Number of overtime hours between date of employment and date of termination (1st October 2019 and 14 July 2021) – 2236 hours;vi.Total Overtime Unpaid Arrears between date of employment and date of termination (1st October 2019 and 14 July 2021) (2236 hours multiply by Kshs. 151 per hour multiply by 1.5) = Kshs. 506,454/=p.16th Claimant – Ojala Odongo Alfredi.Commenced his employment on 1st October 2019 at a monthly salary of Kshs.31,500/= thus a daily salary of Kshs. 1,211/ = and an hourly salary of Kshs. 151/ =;ii.Weekly contractual working hours – Fifty-Two (52) hours per week that is 8 hours daily;iii.Actual number of hours worked daily -12 hours;iv.Actual Number of overtime hours per day - Four (4) hoursv.Total Number of overtime hours between date of employment and date of termination (1st October 2019 and 14 July 2021) – 2236 hours;vi.Total Overtime Unpaid Arrears between date of employment and date of termination (1st October 2019 and 14 July 2021) (2236 hours multiply by Kshs. 151 per hour multiply by 1.5) = Kshs. 506,454/=q.17th Claimant – Brian Chimega Chilmoi.Commenced his employment on 1st October 2019 at a monthly salary of Kshs. 31,500/= thus a daily salary of Kshs. 1,211/ = and an hourly salary of Kshs. 151/ =;ii.Weekly contractual working hours – Fifty-Two (52) hours per week that is 8 hours daily;iii.Actual number of hours worked daily -12 hours;iv.Actual Number of overtime hours per day - Four (4) hoursv.Total Number of overtime hours between date of employment and date of termination (1st October 2019 and 14 July 2021) – 2236 hours;vi.Total Overtime Unpaid Arrears between date of employment and date of termination (1st October 2019 and 14 July 2021) (2236 hours multiply by Kshs. 151 per hour multiply by 1.5) = Kshs. 506,454/=r.18th Claimant – Mary Njeri Kibei.Commenced her employment on 1st October 2019 at a monthly salary of Kshs. 31,500/= thus a daily salary of Kshs. 1,211/ = and an hourly salary of Kshs. 151/ =;ii.Weekly contractual working hours – Fifty-Two (52) hours per week that is 8 hours daily;iii.Actual number of hours worked daily -12 hours;iv.Actual Number of overtime hours per day - Four (4) hoursv.Total Number of overtime hours between date of employment and date of termination (1st October 2019 and 14 July 2021) – 2236 hours;vi.Total Overtime Unpaid Arrears between date of employment and date of termination (1st October 2019 and 14 July 2021) (2236 hours multiply by Kshs. 151 per hour multiply by 1.5) = Kshs. 506,454/= 11.On the issue of shift allowance, the Claimant’s aver that shift allowance was a separate payment from overtime pay, and provided for under their contracts. They point out that the Respondent has not denied that they worked overtime, which entitles them to overtime pay. Respondents’ case in brief 12.The Respondent admits that the Claimants were its employees, having been contracted as security officers on diverse dates but on similar employment terms. Specifically:a.The 1st Claimant, Sofia Fugicha, was employed as a security officer under a contract dated 19th November 2018. Some terms of the contract were that she would work for 45 hours spread over six days a week; she would receive a gross salary was Kshs. 39,765; and she was entitled to other benefits, including a monthly house allowance of Kshs. 3,882 and a monthly shift allowance of Kshs. 10,000/-.b.The 2nd Claimant, Haron Kidai Mwachoni, was employed as a security officer by a contract of employment dated 17th September 2018, some of whose terms were that he would work 52 hours spread over six days a week; receive a gross salary of Kshs. 25,000/-; and receive a shift allowance of Kshs. 10,000/-, subject to statutory deductions.c.The 3rd Claimant, Daniel Kahindi Charo, was employed as a security officer under a contract dated 17th September 2018, some of whose terms were that he would work 52 hours spread over six days a week; receive a gross salary of Kshs. 25,000/-; and receive a shift allowance of Kshs. 10,000/-, subject to statutory deductions.d.The 4th Claimant, Ephas Anyoso Olinga, was employed as a security officer under a contract of employment dated 1st September 2019, some of whose terms were that he was entitled to a monthly gross salary of Kshs. 31, 500/- subject to statutory deductions which was inclusive of a shift allowance of Kshs. 5, 000/-; and that he would be paid overtime pay at the rate of one and a half times the hourly working rate, subject to approval by the management.e.The 5th Claimant, Daniel Njiru John, was employed as a security officer under a contract dated 1st March 2020, some of whose terms were that he would work for 12 hours a day for six days a week; and that he was entitled to a gross salary of Kshs. 26,500, together with a shift allowance of Kshs. 5,000/-, subject to statutory deductions.f.The 6th Claimant, Philip Ntimama Parteroi, was employed as a security officer under a contract of employment dated 1st March 2019, some of whose terms were that he was entitled to a monthly gross salary of Kshs. 53,250, subject to statutory deductions; he would be paid overtime pay at the rate of one and a half times the hourly working rate, subject to approval by the management.g.The 7th Claimant, Melvin Jelagat Rotich, was employed as a security officer under a contract of employment dated 8th January 2020, some of whose terms were that she was entitled to a basic pay of Kshs. 26,500 and a shift allowance of Kshs. 5,000/-, subject to statutory deductions; and she would be paid overtime pay at the rate of one and a half times the hourly working rate, subject to approval by the management.h.The 8th Claimant, Evans Tajewuo Munke, was employed as a security officer under a contract of employment dated 1st September 2019, some of whose terms were that he would work an eight-hour shift for six days a week; he was entitled to a basic pay of Kshs. 26,500 and a shift allowance of Kshs. 5,000, subject to statutory deductions; and he would be paid overtime pay at the rate of one and a half times the hourly working rate, subject to approval by the management.i.The 9th Claimant, Zachariah Ombati Misiani, was employed as a security officer under a contract dated 1st September 2019, some of whose terms were that he would work eight-hour shifts, six days a week; he was entitled to a basic salary of Kshs. 26,500/- along with a shift allowance of Kshs. 5,000/-, subject to statutory deductions; he would be paid overtime compensation at one and a half times the hourly rate, subject to management approval.j.The 10th Claimant, Ibrahim Otieno Lukanga, was also employed as a security officer under a contract dated 1st September 2019, some of whose terms were that he was entitled to a basic salary of Kshs. 26,500/- along with a shift allowance of Kshs. 5,000/-, subject to statutory deductions; and similar to the 9th Claimant, he would be paid overtime pay at one and a half times the hourly rate, subject to management approval.k.The 11th Claimant, Irene Nangekhe Juma, was engaged as a security officer through a contract dated 1st September 2019, some of whose terms were that she would be paid, just like the 10th Claimant, a basic salary of Kshs. 26,500/- and a shift allowance of Kshs. 5,000/-, subject to statutory deductions; and she would receive overtime compensation at one and a half times the hourly rate, subject to management approval.l.The 12th Claimant, Abdirahim Noor Mohammed, was employed as a security officer under a contract dated 1st September 2019, some of whose terms were that he would be paid a basic salary of Kshs. 26,500/- and a shift allowance of Kshs. 5,000/-; and would receive overtime pay at one and a half times the hourly rate, subject to management approval.m.The 13th Claimant, Electrine Sagina Shikoli, commenced employment as a security officer under a contract dated 1st March 2020, some of whose terms were that he would work twelve-hour shifts, six days a week; he would be paid a basic salary of Kshs. 26,500/- and a shift allowance of Kshs. 5,000/-, subject to statutory deductions; and would receive overtime compensation at one and a half times the hourly rate, subject to management approval.n.The 14th Claimant, Ezekiel Kishapui Mayasek, was engaged as a security officer through a contract dated 14th October 2019, some of whose terms were that he would work an eight-hour daily shift, six days a week; earn a basic salary of Kshs. 26,500/- and a shift allowance of Kshs. 5,000/-, subject to statutory deductions; and would receive overtime compensation at one and a half times the hourly rate, subject to management approval.o.The 15th Claimant, Emmanuel Ronoh, was employed as a security officer under a contract dated 1st September 2019, some of whose terms were that he would work an eight-hour daily shift, six days a week; earn a basic salary of Kshs. 26,500/- and a shift allowance of Kshs. 5,000/-, subject to statutory deductions; and receive overtime compensation at one and a half times the hourly rate, subject to management approval.p.The 16th Claimant, Ojala Odongo Alfred, entered into employment as a security officer under a contract dated 1st September 2019, some of whose terms were that he would work an eight-hour daily shift, six days a week; earn a basic salary of Ksh. 26,500/- along with a shift allowance of Kshs. 5,000/-, subject to statutory deductions; and receive overtime pay at one and a half times the hourly rate, contingent upon management approval.q.The 17th Claimant, Brian Chimega Chilimo, was employed as a security officer under a contract dated 1st September 2019, some of whose terms were he would work an eight-hour daily shift, six days a week; earn a basic salary of Ksh. 26,500/- and a shift allowance of Kshs. 5,000/-, subject to statutory deductions; and he would receive overtime compensation at one and a half times the hourly rate, subject to management approval.r.The 18th Claimant, Mary Njeri Kibe, was engaged as a security officer under a contract dated 1st September 2019, some of whose terms were that she would work an eight-hour daily shift, six days a week; earn a basic salary of Ksh. 26,500/- along with a shift allowance of Kshs. 5,000/-, subject to statutory deductions; and receive overtime pay at one and a half times the hourly rate, subject to management approval. 13.It is admitted that the claimant’s employment contracts were terminated on account of redundancy on 13th August 2021, due to the need for the Respondent to restructure in order for it to remain sustainable. The Respondent avers that it issued a notice of intended redundancy to the Labour Officer indicating that the redundancy was to affect 42 positions, and providing the reason for the redundancy, namely the need to effectively manage the challenging business environment to ensure long term viability of the business. The management included restructuring of the business operations as a reason, which would see it declare redundant certain positions within the organization. The redundancy process was to run from 17th June 2021 to 31st July 2021. Further, by letters dated 14th July 2021, the claimants were notified of termination of their contracts on account of redundancy giving them 30 days’ notice, with their last day of work being on 13th August 2021. 14.The Respondent emphasizes that prior to the termination, the claimants were consulted as part of the redundancy process. There were no criteria used for selection of employees since they were all engaged in the security department which was affected by the restructuring. 15.In light of the above, it is the Respondent’s position that it complied with Section 40 of the Employment Act and the Respondent’s Human Resource Policies and Procedures Manual, which provided that an employee declared redundant was entitled to either one month's notice or one month's salary in lieu of notice. It is averred that the Respondent paid the claimants their terminal dues which were highlighted in their respective letters of termination to include: payment for the days worked till 13th August 2021; payment for accrued and unutilized leave days as at 13th August 2021; severance pay for fifteen days for every complete year of service with the company from the date of joining; one month’s pay in lieu of notice less damage or surcharge if any; any other monies the company may owe you; and provided a Certificate for service for each worker, as is evident from the payslips produced by the Respondent. It therefore fully complied with the legal requirements of due process by issuing all necessary notices, conducting the requisite consultations, and processing terminal dues for the claimants. 16.The Respondent states that aside from their monthly basic pay, the Claimants also received a monthly shift allowance, which compensated them for any extra hours worked beyond the normal working hours, including those on a designated public holiday within the month. The shift allowances were paid to the claimants as part of their monthly salary for the entire period of their engagement with the Respondent, as follows:a.The 1st Claimant, Sofia Fugicha, was paid a monthly shift allowance of Kshs. 10,000;b.The 2nd Claimant, Haron Kidai Mwachoni, was paid a monthly shift allowance of Kshs. 5, 000/-;c.The 3rd Claimant, Daniel Kahindi Charo, received a monthly shift allowance of Kshs. 10, 000/-;d.The 4th Claimant, Elphas Anyoso Ollinga, received a monthly shift allowance of Ksh. 5, 000/-;e.The 5th Claimant, David Njiru John, received a monthly shift allowance of Kshs. 5, 000/-;f.The 6th Claimant, Philip Ntimama Parteroi, received a monthly shift allowance of Kshs. __________g.The 7th Claimant, Melvin Jelagat Rotich, received a monthly shift allowance of Kshs. 5, 000/-;h.The 8th Claimant, Evans Tajewuo Munke, received a monthly shift allowance of Kshs. 5, 000/-.i.The 9th Claimant, Zachariah Ombati Misiani, received a monthly shift allowance of Kshs. 5, 000/-;j.The 10th Claimant, Ibrahim Otieno Lukanga, received a shift allowance of Ksh. 5, 000/-;k.The 11th Claimant, Irene Nangehke Juma, received a monthly shift allowance of Kshs. 5, 000/-;l.The 12th Claimant, Abdirahim Noor Mohamed, received a monthly shift allowance of Ksh. 5, 000/-;m.The 13th Claimant, Electrine Sagina Shikoli, received a monthly shift allowance of Kshs. 5, 000/-;n.The 14th Claimant, Ezekiel Kishapui Mayasek, received a monthly shift allowance of Kshs. 5,000/-;o.The 15th Claimant, Emanuel Ronoh, received a monthly shift allowance of Kshs. 5, 000/-;p.The 16th Claimant, Ojala Odongo Alfred, received a monthly shift allowance of Kshs. 5, 000/-;q.The 17th Claimant, Brain Chimega Chilimo, received a monthly shift allowance of Kshs. 5, 000/-;r.The 18th Claimant, Mary Njeri Kibe, received a monthly shift allowance of Kshs. 5, 000/-. 17.The Respondent highlights Clause 7 of each of the Claimant’s contracts which provided that, any compensation for overtime, where it was payable, was subject to approval by the Management, and point out that the Claimants have not demonstrated nor produced any applications made for the approval of management for overtime payments. According to them, the extracts of occurrence book produced by the Claimants did not displace the requirement for management’s approval. On the same issue of overtime payments, it is averred that Clause 5.4 of the Respondent’s Human Resource Policies and Procedures Manual outlined the process for overtime payment, with the requirement that employees submit an Overtime Request Form to their manager for approval, followed by verification by the Human Resource Department and finally, processing by the payroll accountants. They emphasize that the Claimants have not provided any evidence or documentation proving that they followed this procedure. 18.The claim that the Respondent replaced the Claimants with other employees is denied. The Respondent states that positions formerly held by the Claimants were eliminated, and no individuals were hired as a replacement, in line with redundancy. 19.The Respondent avers that the agreements entered into on the payments made to the Claimants were valid as the Claimants consented and accepted payments from the Respondent. They therefore state that the Claimants are not entitled to the reliefs sought. DETERMINATION 20.The parties agreed out of court and filed a partial consent dated 15th December 2025 in the suit as follows- ‘Partial Consent by Consent Between the Claimants and the Respondent herein upon conclusion of Court Annexed Mediation; the Parties have agreed to record a Consent in the following specific terms:1.That payment of an equivalent of two (2) salary by the Respondent to each of the Claimants in full and final settlement of the claim and reliefs sought under Paragraphs a, b, c, e, f and h of the Claimants' Statement of Claim dated 20th October 2023;2.That the Claims and reliefs sought under Paragraphs a, b, c, e, f and h of the Claimants' Statement of Claim dated 20th October 2023 shall be deemed to be dully settled according to the terms of this Consent.3.Costs with respect to the Settled Part of the Claim shall be in the Cause.4.That the Claim for overtime dues as sought under Paragraph (d) of the Statement of Claim dated 20th October 2023 be referred back to the honorable court for determination;5.That the agreed amount in (1) above shall be paid within 30 days after delivery Judgment in the claim for overtime dues.6.That the Parties shall proceed with hearing of the pending bit of the matter (determination of the Claim for Overtime and Costs of the Suit) in terms of Rule 59 of the Employment and Labour Relations Court (Procedure) Rules to wit adoption and basing reliance on the Documents filed by the respective parties.7.That subsequent to production of the Documents by Consent; the parties be at liberty to file their respective written submissions. Dated at Nairobi this 15th day of December 2025’. 21.The parties had 2 outstanding issues for determination by the court namely- Overtime and Costs. Whether the claim for overtime had merit The claimant’s submissions 22.Whether the claimants are entitled to overtime pay and if so, how much - is not in dispute that the Claimants were employed as security guards at the Respondent. In each of the Claimants' Witness Statements, which are not controverted, they contended that they worked for a period of 12 hours on a daily basis for 6 days a week, with one day being availed to them for rest. In each of the month while in employment; the said claimants put in a total of 26 work days in each of the said month. This position is be buttressed by the provision of each of the claimant's letter of employment under the term on "Hours of Work". In the Claimants pleadings read together with their individual witness statements; it comes out clearly that there were only two shifts i.e. day time shift on one hand and night shift on the other. As such, it's clear that the Claimants worked for 12 hours before they could be relieved by their colleagues who were on duty on the previous shift of twelve hours. With utmost humility and sincerity, it is our invitation to this honorable court to examine the Respondents Amended Statement of Response dated 26/03/2024. At paragraph 18 the Respondents has averred that the Claimants received Shift Allowances which it argues constituted or is to be equated to overtime allowance. Shift allowance was distinct from overtime. This kind of allowance was an additional payment that the employer made to their employee for working during unsociable hours. It is a benefit borne out of the Contract of Employment singularly drafted by the Respondent thus a completely distinct benefit from Overtime pay which is borne out of the Employment Act as well as the Wages Regulations. In any event; both of these two benefits were in the Claimants Contract of employment. This is the basis of the claimants' entitlement to both overtimes as well as shift allowance. At this Juncture, we would like to invite the honorable court to consider the Claimants Contracts of which have been produced by both the Claimants and the Respondents. All of these employees had an express clause of overtime in their contracts of employment which benefit they never received during their employment. This is clear if the pay slips availed to court as evidence is anything to go by. Moreover; in the Pay Slips supplied by both the Claimant; there is NO overtime payment for made to the Claimants. (See the Claimants Pay slips exhibited between pages 20 and 37 of the Respondents List and Bundle of Documents dated 26/03/2024.) That particularization of the overtime benefit being sought by the Claimant is that of ordinary days whose multiplier is 1.5 times. To prove that they indeed worked for extra hours so as to be entitled to overtime pay; the Claimants testified as such in their statements. Moreover; they called the evidence of the overall Supervisor one Major Ole Tolu [See Witness Statement of Major (Rtd) Samuel Ole Tolu dated 13th December 2023 being Item No. 76 in the Claimants Bundle of Document and found at pages 225-227 of the Claimants Bundle] who is not a party in this matter and who unequivocally stated thus: "... That as a practice; the day Shift could begin at 6.00 am in the morning and end at 6.00 pm in the evening when the guards who were handling the night shift could report in the evening. As such; all the guards were working for a total of 12 hours every day..." “... That on each particular day; the Guards who report in the morning could cloak in at 6.00 am and note down in an Occurrence book availed at each of the 9 points of concern that they had indeed taken over from their colleague counterpart who were on duty at night. The other ones who were working at night could therefore cloak out hand over and proceed to their homes for them to report back at 6.00 pm in the evening when they could take over. It was a requirement to have the handing over recorded in the Occurrence Book..." “...That I wish to state that in the security department which I headed, there were only two shifts being the day shift (dubbed Green Shift) which run from 6.00 am in the morning and ended at 6.00 pm in the evening. The next shift - Night Shift (Green Shift) could begin at 6.00 pm in the evening and end at 6.00 am in the following morning. Due to the nature of the Security work, all Guards were mandatorily required to report leave their work station only after handing over. This therefore means that they were all working for 12 hours on each and every day they were at work..." “... That the question of absenteeism was taken very serious considering the nature of work which was provision of security for the plant. I therefore wish to state that all the points of concern within the Respondents concern were attended to at all times. Moreover; while I was working for the Respondent, I confirm that there were Occurrence Books kept and maintained by the Respondent in which all occurrences including taking over and handing over were noted. Besides, there were Cloaking in systems kept by the Respondent..." “... That all the Occurrence Books as well as the Cloaking System were the property of the Respondent. I am therefore unable to tender the same to this honorable Court considering I left all of that in the Respondent's custody as I left employment..." 23.The Claimants also filed in court both day and night shift Security Duty Rooster for the months of January 2021 and July 2021. [See pages 228 -231 of the Claimants Bundle] To make the illustration even more lively; they filed and adopted extracts from the Occurrence Book noting to highlight necessary entries. [ See pages 232 -267 the Claimants Bundle]. The highlighted manually entered occurrences in the extracts of the Occurrence book pointed towards the times of hand over which could equally point towards the time when the claimants reported to their respective work stations as security Guards. No entry has been made of any absentee. It should be noted that all these materials being the Proto Energy Limited's (the Respondent herein) Occurrence Books in respect of the Claimants daily entry/reporting and exit from the company on the material times of this suit; the printout of the Respondents Job Attendance Log in cloaking system indicating reporting and exit of the Guards as well as the day and night Duty Roosters were in the possession of the Respondent. Vide a Notice to Produce issued under Section 69 of the Evidence Act; the Claimants sought for these critical materials which were in the Respondents Company. [The same is dated 26/11/2023 and was received on 19/12/2023. See Item No. 83 on the Claimants List of Documents found at pages 269-270 of the Claimants Bundle of Documents] Instead of availing information sought by the Claimants vide their Notice to produce which information could have exonerated the Respondent in the event its version and account was the truth; the Respondent filed in Court a Notice of Non-Admission dated 14/12/2023 and filed in court. Under Section 69 of the Evidence Act; a party who issues a Notice to Produce to the other such as the Claimants here is at liberty to rely on the secondary evidence he may have provided such as the day and night shift Security Duty Rooster for the months of January 2021 and July 2021. [See pages 228 -231 of the Claimants Bundle] and the extract of the Respondents daily Occurrence Book noting to highlight necessary entries. [ See pages 232 -268 the Claimants Bundle] These two secondary documents should be read and considered side by side with the witness statements of the claimants as well as that of the Overall Security head one Witness Statement of Major (Rtd) Samuel Ole Tolu dated 13/12/2023 being Item No. 76 in the Claimants Bundle of Document and found at pages 225-227 of the Claimants Bundle] It is our further submissions which we invite this honorable court to find favour with that logically and as per the evidence of Major (Rtd) Samuel Ole Tolu, It is the statutory duty for the Respondent herein to keep in its custody the documents sought in the Notice to Produce. Reluctance to produce therefore leaves more questions and the sole answer that the evidence was adverse to them. Confronted with a similar circumstance; the court in West Kenya Sugar Co. Ltd v Patrick Mwakha Shihundu [2019] КЕНС 5866 (KLR); Justice J Njagi held at paragraph 25 thus: "The respondent's advocate had served the appellant with a notice to produce, inter alia, the muster roll, accident register and payment sheets for the month of February, 2014. The appellant declined to produce the documents. It is a statutory duty for the appellant to keep such documents. The failure to serve the advocates for the respondent or even to produce the documents in court led to the presumption that had the documents been produced they would have been adverse to the appellant's case." [Emphasis] Similarly; the Court of Appeal in H. Young & Company (E.A) Limited v Okoth & another (Civil Appeal 51 of 2020) [2025] KЕСА 466 (KLR) (7 March 2025) at paragraph 16 held thus: Besides mere denials that the respondents did not work beyond the normal working hours, the appellant did not lead any evidence to disprove the respondents' claim for overtime payment. It is our considered view that information on payment of allowances such as overtime is ordinarily expected to be in the custody of the employer who maintains the employment records. 24.By dint of Section 112 of the Evidence Act, in civil proceedings, if any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon the said party. Moreover; under statute i.e. Sections 10 and 74 of the Employment Act, Laws of Kenya employers are required to keep written contracts and maintain records of employees' particulars, wages and payment details, working hours. leave entitlements and social security contributions. The respondent's failure to produce what is statutorily in its possessions; then such violates statutory obligation and shifts in the burden of proof to the employer under section 10 (7) of the Evidence Act. It is clear from the Claimants evidence that all shifts took 12 hours i.e. both day and night shift. In the Respondents averments in its Amended Statement of Response; Witness Statement of Catherine Mwaniki (Human Resource Manager) and bundle of Documents filed in Court; nothing controverts the Claimants firm contention that there were only two working shifts in every 24 hours and that the Claimants worked either during the day shift of 12 hours or the night shift of 12 hours. Clarification is offered by the Respondent that the Guards were required to work for 10 hours when on night shift. While Regulation 5 of the Regulation of Wages (General) Order, 1982 contemplates an employer to require employees working on night shift to work up to 10 hours in a day; nothing prevented the Respondent from stipulating that in the contract of employment entered into by the claimants whose shifts fell at night. A reading of Regulation 5 of the Regulation of Wages Order which provides -") Notwithstanding subparagraph (1) the normal working week of a person employed on night work shall consist of not more than sixty hours of work per week [Emphasis] The provision quoted in the paragraph hereinabove means that the maximum hours the claimants on night shift were to work for 10 hours in each of the 6 days worked. Evidence led by the Claimants is that they worked for 12 hours contrary to the 8 hours in their contracts of employment as well as the 10 hours stipulated under Regulation 5 (2). In any event; any work done beyond the 8-hour stipulated in the act is to be compensated at a rate differently stipulated. The only way of determining the number of hours worked is by tendering of the Occurrence Books in respect of each of the Claimants daily entry/reporting and exit from the Respondents premises as well as printouts of attendance login in the Respondents cloaking system well within its custody and care. The mischief of resisting production of this essential material which could have otherwise exonerated it is clearly catching up with the Respondent now. On the flipside; the Claimants labored with hardship to beseech this court to admit secondary evidence material at their disposal to support their case. Nothing could have been easier for the Respondent to produce the documents which the Claimants sought as if that was to be the case; then the Respondents could have been vindicated. The secondary evidence which the claimant invited the court to consider and base reliance on i.e. Security shift duty rosters running from page 228 - 268 of the Claimants bundles paints the clear picture of two distinct shifts i.e. Green Shift (Day Shift) and Blue Shift (night Shift).From the unrebutted evidence in the Security shift duty rosters; the claimants fell into respective shifts as set out below: Green Shift (Night Shift) a) Melvin Jelagat Rotich - 7th Claimant [See pages 228 & 230 of the Claimants Bundle of Documents]; b) Evans Tajewuo Munke - 8th Claimant [See pages 228 & 230 of the Claimants Bundle of Documents]; c) Zachariah Ombati Misiani - 9th Claimant [See pages 228 & 230 of the Claimants Bundle of Documents]; d) Ezekiel Kishapui Mayasek - 14th Claimant [See pages 228 & 230 of the Claimants Bundle of Documents]; e) Ojala Odongo Alfred - 16th Claimant [See pages 228 & 230 of the Claimants Bundle of Documents]; f Mary Njeri Kibe – 18th Claimant [See pages 228 & 230 of the Claimants Bundle of Documents]; Blue Shift (Day Shift) a) Sofia Fugicha Happi - 1st Claimant [See pages 229 & 231 of the Claimants Bundle of Documents]; b) Haron Kidai Mwachoni - 2nd Claimant [See pages 229 & 231 of the Claimants Bundle of Documents]; c) Daniel Kahindi Charo 3rd Claimant [See pages 229 & 231 of the Claimants Bundle of Documents]; d) Elphas Anyoso Ollinga 4th Claimant [See pages 229 & 231 of the Claimants Bundle of Documents]; e) Philip Ntimama Parteroi 6th Claimant [See pages 229 & 231 of the Claimants Bundle of Documents]; f) Irene Nangekhe Juma 11th Claimant [See pages 229 & 231 of the Claimants Bundle of Documents]; g) Abdirahim Noor Mohammed 12th Claimant [See pages 229 & 231 of the Claimants Bundle of Documents]; h) Electine Sagina Shikoli 13th Claimant [See pages 229 & 231 of the Claimants Bundle of Documents]; i) Emmanuel Ronoh 15th Claimant [See pages 229 & 231 of the Claimants Bundle of Documents]; Brian Chimega Chilmo 17th Claimant [See pages 229 & 231 of the Claimants Bundle of Documents]; 25.The Constitution of Kenya 2010 protects the avails to the claimants the right to equal protection and equal benefit of the law as every person is deemed equal before the law. Further, Article 28 bestows upon the claimants herein inherent dignity and the right to have that dignity respected and protected. Slavery and servitude are also expressly outlawed by the Constitution in Article 30. It's equally instructive for the courts attention to be focused on the provisions of Article 41 on labour relations rights which avail to every person has the right to fair labour practices to wit to be fairly remunerated and employed in reasonable working conditions. Over and above constitutional safeguard; the employment Act at Section 27 requires an employer to set up working hours for its employees by providing thus: "...An employer shall regulate the working hours of each employee in accordance with the provisions of this Act and any other written law..." "... (2)Notwithstanding subsection (1), an employee shall be entitled to at least one rest day in every period of seven days..." Section 26 (2) of the Employment Act provides thus: "Where the terms and conditions of a contract of service are regulated by any regulations, as agreed in any collective agreement or contract between the parties or enacted by any other written law, decreed by any judgment award or order of the Employment and Labour Relations Court are more favorable to an employee than the terms provided in this Part and Part VI, then such favorable terms and conditions of service shall apply.". From the Claimants contracts of employment; they were the agreement that they were to work for a total of 52 hours a week which hours could be spread all over the week. It is the Claimants' submission that the contractually agreed hours of work best deem them in line with Section 26 (2) of the Employment Act. As such; it's their contention that any hour worked outside the stipulated timeline be it during the day shift or at night constituted overtime for which they were entitled to be paid. The Regulation of Wages (General) Order, 1982 stipulates hours of work at Regulation 5 which provides thus:(1)The normal working week shall consist of not more than fifty-two hours of work spread over six days of the week. [Emphasis](2)Notwithstanding subparagraph (1) the normal working week of a person employed on night work shall consist of not more than sixty hours of work per week.(3)No person under the age of sixteen years shall be required to work for more than six hours in any day. Regulation 6 of the Order on overtime pay stipulates:(a)"Overtime shall be payable at the following rates-(a)for time worked in excess of the normal number of hours per week at one and one-half times the normal hourly rate;(b)for time worked on the employees' normal rest day or public holiday at twice the normal hourly rate."It is on account of the foregoing formular at Regulation 6 (a)that we have premised the calculations found in the Claimants Amended Statement of Claim under Particulars of the Claimants overtime dues. It is bizarre how the Respondent has grappled to tender grounds justifying averments that the Claimants are not entitled to overtime pay. At first; the Respondent made mere denials, followed by averments that the claimants never worked for extra hours. Subsequently; it softened its stance and conceded that they indeed worked overtime but all of the overtime pay entitlement was settled through the payments made as Shift Allowance. Finally, it indicated that the claimants were not paid merely because they had not signed overtime claim form as stipulated in the Human Resource Policy. That the Claimants have established that they worked for extra hours for which they were entitled over time pay. From the 1Claimants' contract of Employment, it is clear that both over time and Shift Allowance was provided for. This fact is even conceded to by the Respondent. The claimant's employment was terminated vide a letter dated 14th July 2021. While the letter indicated that the last working date for the claimants was to be on 13/08/2021; the Respondent opted to have the same take effect immediately (14/07/2021) an in lieu; it paid all of them one month salary in lieu of Notice. 48. Nothing barred the Claimants from seeking payment of their overtime dues at any point in the pendency of their employment. It could have even been done on their last day at work. Considering the immediate effect of the termination letter; they were clearly prejudiced as they could not make their requests ad have them processed. In the instant suit; which was filed within the stipulated timelines as provided for under Section 89 of the Employment Act which provides thus: Notwithstanding the provisions of section 4(1) of the Limitation of Actions Act (Cap. 22), no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained or in the case of continuing injury or damage within twelve months next after the cessation thereof. It is our submissions therefore that it is well within the claimants' rights to seek to be paid their overtime dues. On the face of Section 26 of the Employment Act; it could be improper to rely on failure by the Respondent to avail claim forms to the Claimants to enable them claim to their detriment. It is safe to argue that the statutory entitlement to overtime cannot be limited by a Human Resource Police which the was never issued to the claimants prior to commencement of their employment. The Respondent’s submissions 26.Whether the Claimants are entitled to overtime pay - The Claimants are not entitled to overtime dues at all. The Claimants were at all material times employed by the Respondent as security officers though engaged at different times. The 1st Claimant’s job title was reviewed and was subsequently engaged as a security supervisor officer effective 1st August 2029. Her role entailed supervision of the security staff including the 2nd to 18th Claimants. The Claimants alleged that they worked for a total of 12 hours per day for 6 days every week. The Claimants allege that this was above the contractual hours of work. Contrary to the Claimants’ assertions in their submissions at paragraph 45 that the Respondent has grappled to tender grounds justifying averments that the Claimants are not entitled to overtime pay, the Respondent denied in toto the claim for overtime and, in rebuttal, produced copies of the respective contracts of employment, which provided that the minimum hours of work per week for the Claimants were as follows:a.1 st Claimant - 45 hours spread over six days a week (copy of the contract marked as A1 in the Claimants’ Trial Bundle).b.2 nd Claimant - 52 hours spread over six days a week (copies of their contracts are at pages 1–5 of the Respondent’s Bundle)c.3 rd Claimant - 52 hours spread over six days a week (marked as A3 in the Claimants’ Trial Bundle respectively)d.4 th Claimant –8 hours per day (contract at pages 4–6 of the Respondent’s Bundle)e.5 th Claimant -8 hours per day (contract is marked A5 in the Claimants’ Trial Bundle)f.6 th Claimant -8 hours per day (contract is marked A6 in the Claimants’ Trial Bundle)g.7 th Claimant – 8 hours per day (contract is marked A7 in the Claimants’ Trial Bundle)h.8 th Claimant - 8 hours per day (contract is marked A8 in the Claimants’ Trial Bundle)i.9 th Claimant - 8 hours per day (contract is marked A9 in the Claimants’ Trial Bundle)j.10th Claimant – 8 hours per day (contract is marked A10 in the Claimants’ Trial Bundle)k.11th Claimant – 8 hours per day (contract is marked A11 in the Claimants’ Trial Bundle)l.12th Claimant - 8 hours per day (contract is marked A12 in the Claimants’ Trial Bundle)m.13th Claimant - 8 hours per day (contract is at pages 9 -12 of the Respondent’s bundle)n.14th Claimant - 8 hours per day (The contract is at pages 13 - 15 of the Respondent’s bundle) o. 15th Claimant - 8 hours per day (contract is marked as A15 in the Claimants’ Trial Bundle)p.16th Claimant - 8 hours per day (contract at pages 16–18 of the Respondent’s Bundle)q.17th Claimant - 8 hours per day (contract is marked as A17 in the Claimants’ Trial Bundle)r.18th Claimant - 8 hours per day (contract is marked as A18 in the Claimants’ Trial Bundle) (contracts at pages 9–15 of the Respondent’s Bundle); 15th Claimant - 8 hours per day 16th Claimant and 17th and 18th Claimants (marked as A17 and A18 in the Claimants’ Trial Bundle). 27.The Claimants are relying on the witness statement of Retired Major Ole Tudo who is not a party to this suit for the averment that they worked in day shifts and night shifts of 12 hours each. They have also produced excerpts of the manually filled occurrence books (Page 232 – 267 of Claimants’ Trial Bundle) and the document labelled as a duty roster. (Page 268 of the Claimant’s Trial Bundle) The Claimants relied on the notice to produce documents dated 26th November 2023 through which they notified the Respondents to produce the occurrence books, clock in details and duty rota for the Claimants and other security guards from September 2018 to July 2021. The Respondent replied by filing a notice of non-admission of documents dated 14th November 2023 through which it declined to produce the documents on the grounds inter alia that the notice is not anchored under the Employment and Labour Relations Court Act or the Employment and Labour Relations Court (Procedure) Rules, 2024. The Claimant further submitted that the failure to produce those documents shifted the burden of proof to the employer and creates a presumption that had the documents been produced they would have been adverse to the Respondent’s case. In response thereto we rely on the case of case of Patrick Lumumba Kimuyu Vs Prime Fuels(K) Limited [2018] eKLR where the Court held that: “Whereas we appreciate that the employment Act enjoins an employer to keep employment records in respect of an employee, that does not absolve an employee from discharging the burden of proving his/her claim. If anything, that burden weighed more heavily upon the appellant in view of the respondent’s categorical denial that the appellant had worked on the days claimed. It behooved the appellant to first discharge the burden by showing that he had indeed worked on the public holidays and Sundays as contended. Only upon such proof, would the evidential burden then shift to the respondent to show that she paid for the overtime worked.” 28.The Claimants’ have not produced any evidence to show that they worked above the contractual hours. The burden rests with the Claimants to prove that they worked over and above the agreed working hours, during holidays and that they were not paid for the overtime. In Rogoli Ole Manadiegi v General Cargo Services Limited [2016] KEELRC 1607, the court held that: “The Employee, in claiming overtime pay however, is not deemed to establish the claim for overtime pay by default of the Employer bringing to Court such employment records. The burden of establishing hours or days served in excess of the legal maximum, rests with the Employee.” The Claimants’ have produced excerpts of the manually filled occurrence books (Pages 232 to 267 of the Claimants’ Trial Bundle) and the document labelled as a duty rota. The extracts of occurrence books do not contain the company letterhead, logo or seal to show that they emanate from or relate to the Respondent. The documents consist of photographs of what is said to be an occurrence book but the Claimants have not produced a certificate of electronic evidence to confirm authenticity of the said photographs as required under Section 106B of the Evidence Act, when they were taken, by whom, from where and on which device. In the absence of such certificate the documents are inadmissible and ought to be expunged from the record. In London Distillers (K) Limited v Mavoko Water & Sewerage Company & 2 others [2019] KEELC 1097 (KLR), the Court struck off from the record electronic documents that were filed without a certificate. The court held that: “In the absence of a certificate contemplated under Section 106B (4) (d) of the Evidence Act, I find that the purported print outs of the screenshots annexed on the Applicant’s Affidavit as annexture MM1 and MM2 be struck off from the record.” The claim for overtime is premised on an unsubstantiated allegation that all the Claimants worked twelve hours per day, six days a week, throughout the entire period of their engagement with the Respondent. No particulars have been provided as to the specific dates, times, or circumstances under which the alleged overtime was incurred. The blanket claim is speculative and exaggerated. The Claimants have, for instance, alleged that they all worked continuously throughout the entire period of their engagement without taking any leave whatsoever. In Ngunda v Ready Consultancy Limited (Civil Appeal 129 of 2019) [2022] KECA 577 (KLR) (4 February 2022) (Judgment) the Court of Appeal held that: “On the issue of payment for 33 public holidays, 152 Sundays, and 5184 hours of overtime, the learned judge was not satisfied that a firm basis was established, and dismissed the claim. An analysis of the record does not disclose that these claims were properly established. No evidentiary proof was provided that the appellant worked on those days. There were no details or particulars given of the public holidays or Sundays worked. Did he work on all public holidays and Sundays, or just some of them? Which days in particular? As regards the alleged overtime, there was no breakdown of the 5184 hours into the days to which they related. As it were, it would seem that the appellant was engaged in overtime work continuously for the entire 5184 hours, which is neither feasible nor humanly possible. As correctly submitted by the respondent, he who alleges must prove.” The claim for overtime is in the nature of special damages which should be specifically pleaded and strictly proved. As such the Claimant has not discharged the burden of proof of the overtime hours worked and in the absence of such proof the burden cannot shift to the Respondent to prove that overtime was paid. 29.The Claimants received a shift allowance for any work performed outside normal hours . Shift allowance is not expressly provided for in the Employment Act or the wages order. Given that there is no legal definition for shift allowance, it should be given its ordinary meaning which is an additional payment, beyond regular wages, provided to employees for working "unsociable hours" such as nights, weekends, or holidays, as compensation for the inconvenience or disruption of working outside of standard working hours. (See https://uk.indeed.com/career-advice/career-development/what-is-shift-allowance) The Claimants’ contracts of employment provided that shift allowance was meant to “take care of any extra hours worked beyond the normal working hours and any hours worked on a designated public holiday”. (Refer to the contract of employment for Daniel Kahindi, the 3rd Claimant, marked as A3 at pages 54 – 58 of the Claimant’s Trial Bundle). The Claimants’ contracts of employment also provided that due to the nature of their work as security work they may be required to work outside the normal working hours and the consideration for this was shift allowance payable every month regardless of the excess hours worked during the month. (Refer to the Claimant’s contracts as listed under paragraph 7 above). The shift allowances were paid to the claimants as part of their monthly salary. The Respondent has produced copies of pay slips showing the breakdown of the Claimants’ basic salary and allowances. The Claimants cannot therefore say that they were not compensated. The pay slips for the Claimant’s are as below-a.The 1st Claimant, Sofia Fugicha, was paid a monthly shift allowance of Kshs. 10,000 (see the pay slip at page 20 of the Respondent’s Bundle).b.The 2nd Claimant, Haron Kidai Mwachoni, was paid a monthly shift allowance of Kshs. 5, 000/- (see the pay slip at page 21 of the Respondent’s Bundle).c.The 3rd Claimant, Daniel Kahindi Charo, received a monthly shift allowance of Kshs. 10, 000/-. (See the pay slip at pages 60 of the Claimant’s trial Bundle)d.The 4th Claimant, Elphas Anyoso Ollinga, received a monthly shift allowance of Ksh. 5, 000/- (See the pay slip at page 23 of the Respondent’s Bundle)e.The 5th Claimant, David Njiru John, received a monthly shift allowance of Kshs. 5, 000/- (see the pay slip at page 24 of the Respondent’s Bundle)f.The 6th Claimant, Philip Ntimama Parteroi, received a monthly shift allowance of Kshs. (see the pay slip at page 25 of the Respondent’s Bundle)g.The 7th Claimant, Melvin Jelagat Rotich, received a monthly shift allowance of Kshs. 5, 000/- (see the payslip at page 114 of the Claimant’s trial bundle)h.The 8th Claimant, Evans Tajewuo Munke, received a monthly shift allowance of Kshs. 5, 000/-. (see the pay slip at page 124 of the Claimant’s trial bundle)i.The 9th Claimant, Zachariah Ombati Misiani, received a monthly shift allowance of Kshs. 5, 000/0 (see the pay slip at page 135 of the Claimant’s trial bundle)j.The 10th Claimant, Ibrahim Otieno Lukanga, received a shift allowance of Ksh. 5, 000/- (see the pay slip at page 148 of the Claimant’s trial bundle)k.The 11th Claimant, Irene Nangehke Juma, received a monthly shift allowance of Kshs. 5, 000/- (See the pay slip at page 158 of the Claimant’s trial bundle)l.The 12th Claimant, Abdirahim Noor Mohamed, received a monthly shift allowance of Ksh. 5, 000/-. (see the pay slip at pages 169 of the Claimant’s trial bundle)m.The 13th Claimant, Electrine Sagina Shikoli, received a monthly shift allowance of Kshs. 5, 000/- (see the pay slip at page 178 of the Claimant’s trial bundle)n.The 14th Claimant, Ezekiel Kishapui Mayasek, received a monthly shift allowance of Kshs. (see the pay slip at page 33 of the Respondent’s Bundle)o.The 15th Claimant, Emanuel Ronoh, received a monthly shift allowance of Kshs. 5, 000/- (see the pay slip at page 196 of the Claimant’s trial Bundle)p.The 16th Claimant, Ojala Odongo Alfred, received a monthly shift allowance of Kshs. 5, 000/- (see the pay slip at page 35 of the Respondent’s Bundle)q.The 17th Claimant, Brain Chimega Chilimo, received a monthly shift allowance of Kshs. 5, 000/- (see the pay slip at page 215 of the Claimant’s trial bundle)r.The 18th Claimant, Mary Njeri Kibe, received a monthly shift allowance of Kshs. 5, 000/- (see the pay slip at page 37 of the Respondent’s bundle). 30.The Claimants did not comply with contractual and policy requirements on overtime. The Claimants’ contracts of employment provided that the Claimants may be expected to work reasonable hours outside standard working hours. (Refer to clause 5 of the claimants’ contracts available in the Claimant’s Trial Bundle and Respondent’s Bundle of Documents as detailed in paragraph 7 above) The contracts further provided at clause 7 thereof that overtime compensation in the event of exceeding the normal working hours would be subject to approval by management. The Respondent has annexed an excerpt of the Human Resources Policies and Procedures Manual at page 36 of the Respondent’s bundle of documents. Clause 5.4 of the manual provides for the overtime request procedure as follows:a.A formal communication is initiated via email from the respective HOD to the Manager in charge justifying the need and notifying of his intention, time (number of employees involved in the task and time requested) per Overtime Request form before the Overtime is done.b.Upon receipt of approval, the Manager then raises the Overtime Request Form.c.In circumstances where the approval is rejected, the particular task shall not take place.d.The physical form duly filled is then handed over to the HR department for verification and confirmation with the time and attendance report.e.Upon confirmation the HR department will communicate to the payroll accountant for payment through the system.f.Employees entitled to overtime shall complete their assignment on time to avoid unnecessary cost. 31.The overtime request procedure in the workplace is meant to cushion against abuse of the overtime provision so that an employer only compensates for reasonable and justifiable claims for overtime. In this regard the above clause provides for several approval processes. This approval is referred to in the respective contracts. More importantly, the process begins with a formal communication by the line manager and filling of an overtime form by the employee. 25. The Claimants have not produced any overtime request form for the entire duration they claim to have worked overtime. The claim for overtime pay is computed from the date of commencement of employment for each Claimant. Some of the Claimants were first employed in 2018 such as the 3rd Claimant whose date of employment was 17th September 2018. This means that if at all the Claimants worked overtime as alleged they had the chance to claim the overtime dues in accordance with the company policy on a continuous basis. The 1st Claimant was the security supervisor and was in charge of validating the overtime request forms submitted by his supervisees as required under clause 5.4 (a) and (b) above. The 1st Claimant has not produced any overtime claim forms submitted to her for approval relating to the days which the Claimants allege to have worked overtime. The Claimants ought to have discharged the burden of proof first that they worked extra hours, that they filled the overtime request forms for the hours worked and that the forms were submitted to management. Having failed to do so, the Claimants have not proved their claim for overtime pay and the Respondent submits that they are not entitled to this as alleged or at all. In Philip & 10 others v Proto Energy Limited (Cause E1060 of 2021) [2026] KEELRC 110 (KLR) (23 January 2026) (Judgment), thecourt was faced with similar issue of claims for overtime by security officer. In its dismissing the claim for want of evidence, this court held that: “The respondent produced its human resource manual and relied on clause 5.4 which provided for overtime request form. The claimants did not produce evidence of having made a request for payment of extra overtime beyond what was paid as overtime and shift allowance pursuant to the human resource manual. The 10th claimant was employed as a security supervisor. On perusal of his witness statements dated 23rd August 2024, the court did not find any averment of having processed a claim for overtime for the other employees which was not paid. …The claim for outstanding payment of overtime was not proved on a balance of probabilities and is dismissed.” . In view of the foregoing, the Claimants have failed to discharge their burden of proof in respect of the claim for overtime and the same should be dismissed. 32.The 1st Claimant is not entitled to overtime as she was a manager. The 1st Claimant was a Security Supervisor in charge of supervising security staff pursuant to the appointment letter dated 26th August 2029 (a copy of the appointment letter appears at page 40 of the Claimant’s Trial Bundle). The appointment was made together with a salary increase to Kshs.56,000. This was a management position within the company 9 structure. Courts have held that overtime pay, as provided for under the Wages Orders, is reserved for lower-cadre employees earning minimum wage. In the case of Albert Ouma Akeyo v Maguna Andu Self Selection Stores Ltd [2013] eKLR the court held that: “The practice in the employment industry is that management staff are not normally entitled to overtime. The logic behind this is that they are part of the management and can be called to duty outside their regular hours and this is already catered for in the reasonably good salaries and allowances they are given. It is in this context that the court regards the management allowance that was being paid to the claimant and comes to the conclusion that he is not entitled to claim overtime as from the time he got promoted. Regarding the period prior to 2009, the claim for overtime would only be sustainable up to the year 2006 as any claim before this year would be statute barred by the reason of limitation period for bringing claims based on contract. There is a further problem that even if the court were to be prepared to award overtime for the period before 2009, such an award cannot be ascertained since the claimant has not disclosed the number of hours worked overtime and the salary he was earning prior to 2009 to enable the court use as a basis for calculating the overtime. The salary the claimant was offered on promotion in 2009 cannot be used as a basis for calculating overtime as this would give undue advantage to the claimant. To this extent this claim fails for lack of evidence.” We further rely on the Court of Appeal’s decision in Ngunda v Ready Consultancy Limited (Civil Appeal 129 of 2019) [2022] KECA 577 (KLR) (4 February 2022) (Judgment) “Being a part of management, he was well placed to pursue payment for public holidays, Sundays and overtime worked, or at the very least furnish the court with further and better particulars in support of his claim. As a consequence, the learned judge cannot be faulted for finding that the claim was unsubstantiated and lacking in foundation or basis. As such, the claim was not merited and is dismissed.” In view of the foregoing, we urge this honourable court to dismiss the 1st Claimant’s claim for overtime pay on the basis that being a manager, she is not entitled to overtime pay which under the Regulation of Wages (General) Order and the Protective Security Services Order is reserved for lower cadre employees earning minimum wage. Decision on overtime 33.In the matter of Rogoli Ole Manadiegi -vs- General Cargo Services Ltd (2016) eKLR Justice Rika stated in paragraph 7-‘The employee in claiming overtime pay however is not deemed to establish the claim for overtime pay by default of the employer bringing to the Court such employment records. The burden of establishing hours or days served in excess of the legal maximum, rests with the employee. The foregoing decision is to establish that in a claim for overtime, the employee must properly substantiate their claims. In the present case, the claimants produced extracts of the day and night shift security duty roster from January 2021 to July 2021 (pages 228-267 of the claimant’s bundle). The claimant also filed and served a notice to produce dated 26th November 2023 under section 69 of the Evidence Act, seeking occurrence books for entries/ reports and exits for the period 1st September 2018 to 14th July 2021, along with printouts from the clocking system and the day and night duty rosters for that period. In response, the respondent filed a notice of non-admission of the documents. Consequently, relying on section 69 of the Evidence Act, the claimant stated that due to the lack of response, they were entitled to rely on secondary data. 34.The respondent raised a defence that they paid the claimants' monthly shift allowance of Kshs. 10,000 reduced to Kshs. 5, 5000 to compensate for extra hours worked beyond standard hours, including public holidays. The respondent also relied on clause 5. 4 of its human resources manual, which outlined the procedure for claiming overtime, and submitted that no such claim was made during employment. The manual provided for an overtime request form (page 44 of the Respondent' s bundle). The respondent produced payslips of the claimants as part of the supplementary list of documents dated 17 th June 2025. These payslips indicated the shift allowance. The court confirmed that the claim related to 12- hour shifts over 6 days a week. The contracts explicitly stated that overtime was payable for work beyond normal working hours. The supervisor of the claimants swore a statement asserting that the claimants were on 12- hour shifts. The court noted that, of the contracts filed, only Electine Saginah Shikoli' s contract contained a clause stating, " 5. 1 for staff working on shift basis , the standard working hours shall be on an eight- hour shift determined by the company (twelve hours for security staff ) " (see page 9 of the respondent' s bundle). All the claimants, except for the first claimant who had different remuneration terms (her payslip was on page 20 of the respondent' s documents), were engaged as regular security officers; thus, the clause of twelve hours for security staff applied to them. The court accepted the respondent' s position that the claimant was a manager and more so, after reading her statement indicating she was a senior security supervisor. I upheld the decision in the Court of Appeal' s case Ngunda v Ready Consultancy Limited (Civil Appeal 129 of 2019) [2022] KECA 577 (KLR) (4 February 2022) (Judgment) where the court stated that - “Being a part of management, he was well placed to pursue payment for public holidays, Sundays and overtime worked, or at the very least furnish the court with further and better particulars in support of his claim. As a consequence, the learned judge cannot be faulted for finding that the claim was unsubstantiated and lacking in foundation or basis. As such, the claim was not merited and is dismissed.” I disallow the claim for overtime for the first claimant. There was no evidence of overtime payment in any of the payslips produced by the respondent. The court having held the security officers were on 12 hours shifts as stated in the Shikoli’s contract, the shift allowance could only have covered public holidays and rest days worked. The case is distinguished from the decision in Philip & 10 others v Proto Energy Limited [2026] KEELRC 110 (KLR) for the reason that there was evidence of overtime pay for rest days in the payslips, unlike in the instant case. 35.Section 5 (1) of the Regulation of Wages (General) Order, 1982 provides for normal working hours as –‘The normal working week shall consist of not more than fifty-two hours of work spread over six days of the week.’’ In section 6(1) payable overtime is provided for as follows- ‘Overtime shall be payable at the following rates—(a)for time worked in excess of the normal number of hours per week at one and one-half times the normal hourly rate;(b)for time worked on the employees normal rest day or public holiday at twice the normal hourly rate.’’ The respondent did not comply with the notice to produce and hence the documents produced by the claimants were admitted as evidence of the claimants having worked overtime. The respondent produced its human resource manual and relied on clause 5.4, which provided for an overtime request form. The court finds that by fact of employment for 12 hours the overtime was automatically due for period beyond the 52 hours per week and the employees engaged as secure ty officers need not have claimed the overtime. The employer ought to pay automatically. The court, on evaluation of the documents placed before it by the parties, concluded that the 2nd to 18th claimants proved that they had worked overtime. 36.The court finds the applicable formula is 52 days per week. Thus normal working hours is 52hours /6 days. The claim is erroneously based on 8 hours working day contrary to 52 hours per week. The parties are directed to tabulate the payable over time to the 2nd to 18th claimants using 52 hours per week for 6 days and file a joint tabulation in court within 21 days. In the event of lack of consensus. The parties to file separately for the court to decide. 37.On costs- the default principle of litigation is that costs follow the event. The respondent conceded the claim and agreed to pay compensation. The respondent ought thus to bear the costs for the claim for the unfair termination plus the claimants were successful on overtime claims. The respondent is ordered to pay the claimants' costs of the suit. 38.It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 19TH JUNE, 2026.JEMIMAH KELI,JUDGE.In the Presence of:Court Assistant: OtienoClaimant: Njao h/b OmayioRespondent: Wangongu