https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1958

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAKURU ELRC APPEAL NO. E005 OF 2024 (Before Hon. Lady Justice Anna Ngibuini Mwaure) TURACO LIMITED …….….………………...……... RESPONDENT VERSUS JOSEPH KIPMIEMBEI YEGON…………….….…...… APPELLANT (Being an Appeal from the Judgment and Decree of the Honourable E. Soita, Senior Resident Magistrate, delivered on 19th December 2023 in Nakuru MCELRC No. E143 of 2023) JUDGMENT 1. The Appellant, being dissatisfied with the judgment and decree of Honourable Senior Resident Magistrate E. Soita, filed this appeal vide a Memorandum of Appeal dated 19th January 2024 on the grounds that:- 1.The learned trial magistrate erred in fact and in law in awarding compensation for underpayments plus 15% housing allowance for the period of May 2017 to April 2018 which were statute barred under section 89 of the Employment Act. 2.The learned trial magistrate erred in fact and in law in awarding compensation for NAKURU APPEAL NO. E005 OF 2024 JUDGMENT 1 | P A G E salary underpayment plus 15% housing allowance without making a determination whether the Claimant was alight van driver or medium sized vehicle driver as classified under the National Transportation Safety, thereby applying erroneous figures in computing compensation to be awarded 2. The Appellant prays that: a.This Appeal be allowed. b.The Honourable court do set aside and/or vary the judgment on remedies and be substituted with an order of this Honourable court. c. The costs of this appeal be borne by the Respondent. d.This Honourable Court do grant such other or further relief as it may deem just and expedient under the circumstances. 3. The Appeal was disposed of by way of written submissions. Appellant’s submissions 4. The Appellant argued that the claim was filed in the year 2021 and the claim for underpayment is from August 2014 to April 2020 and the Appellant had pleaded for overtime and underpayment before May 2018. The Appellant submitted that the trial NAKURU APPEAL NO. E005 OF 2024 JUDGMENT 2 | P A G E magistrate erred both in law and fact in awarding underpayments and house allowance. First, claims for underpayments prior to May 2018 were statute-barred under section 90 of the Employment Act, which limits employment claims to three years, and the magistrate therefore acted without jurisdiction. This position is fortified by Divecon Ltd v Samani [1995–1998] 1 EA 48 and Attorney General & Another v Andrew Maina Githinji & Another [2016] KECA 817 (KLR), which affirm that limitation goes to jurisdiction and courts cannot extend time where the statute expressly provides. 5. Second, the Appellant submitted that the magistrate wrongly classified the Respondent as a medium truck driver despite evidence showing he drove vehicles of varying load capacities: KAS 387Q (3970 kgs), KAP 526C (1490 kgs), and KAW 435G (2900 kgs). Under NTSA classification, medium trucks range from 3500– 7500 kgs, meaning two of the vehicles fell below the threshold. The burden of proof under sections 107 and 109 of the Evidence Act lay with the Respondent, who failed to produce NTSA certification or contractual proof. The Appellant placed reliance on NAKURU APPEAL NO. E005 OF 2024 JUDGMENT 3 | P A G E the case of Grain Pro Kenya Inc. Ltd v Andrew Waithaka Kiragu [2019] KECA 563 (KLR) where the Court of Appeal held that the employee must prove underpayment claims. 6. Third, the Appellant submitted that the award of 15% house allowance was erroneous since the Respondent’s payslips showed consolidated salaries, permissible under section 31 of the Employment Act, and no evidence was adduced to show exclusion of house allowance. The appellant placed reliance on the case of Co-operative Bank of Kenya Ltd v Banking Insurance & Finance Union Kenya [2014] KECA 109 (KLR) to support that separate house allowance cannot arise where salary is consolidated. 7. In light of these errors, the Appellant urges the appellate court to re-evaluate the evidence and set aside the awards. Respondent’s submissions 8. The Respondent submitted that he consistently testified that he was underpaid while working as a driver of a medium-sized lorry for the Appellant, earning Kshs.13,500/= per month from August 2014 NAKURU APPEAL NO. E005 OF 2024 JUDGMENT 4 | P A G E to November 2018, Kshs.15,000/= from December 2018 to December 2019, and Kshs.18,000/= from January to April 2020. He argued that his evidence was unchallenged, as the Appellant failed to produce credible proof that he drove light vehicles, relying instead on an unauthenticated NTSA document. Under section 107 of the Evidence Act, the Respondent argued that the Appellant bore the burden of proof but did not discharge it. The Respondent relied on Legal Notice 197 of 1st May 2013, Legal Notice No 117 of 1st May 2015, Legal Notice No. 112 of 1st May 2017 in support of his claim totalling Kshs.487,198.20/=. In essence, his claim for underpayment dues is not statute-barred under section 90 of the Employment Act because the employer’s failure to pay the proper wages constitutes a continuing default. Each month of underpayment rests the accrual of the cause of action until the default ceases, meaning limitation does not defeat recovery of arrears. 9. The Respondent placed reliance on the case of Kathra Hussein Noor & Another v Kaderdina Hajee Essak Limited [2016] KEELRC 509 (KLR) which quoted the case of David Wanjau Muhoro v NAKURU APPEAL NO. E005 OF 2024 JUDGMENT 5 | P A G E Ol Pejeta Ranching Limited [2014] KEELRC 296 (KLR) where the court observed as follows: “Where salary of an employee remains in arrears or remain unpaid, recovery of the arrears, or remains underpaid, recovery of the arrears or the underpayments, is not to be defeated limitation under section 90 of the Employment Act; all accrued benefits must be paid to the employee on termination; arrears of salary and underpayments of salary involve a date of cessation of the continuous default; every month there is a default by the employer, the time for accrual of the cause of action rests with regard to the cumulative obligations; and so long as the whole claim is time barred, there is no reason to bar the claim for arrears of salary discrimination and underpayments accruing during the period in employment.” 10. The Respondent submitted that he is entitled to costs because costs generally follow events and serve to compensate the successful party for the effort of prosecuting or defending a case. Unless there is misconduct, neglect, or vexatious conduct by the NAKURU APPEAL NO. E005 OF 2024 JUDGMENT 6 | P A G E claimant, the court has no discretion to deny costs. This principle was affirmed in Cecilia Karuru Ngayu v Barclays Bank of Kenya & Another [2016] eKLR; the court cited the case of Rosemary Wairimu Munene Ex parte Applicant v Ihururu Party Farmers’ Cooperative Society J.R. No. 4/2014 where the court emphasized that costs are awarded to the successful party as a matter of fairness. 11. Therefore, the Respondent, having proved his case on a balance of probabilities, urges the court to dismiss the case and the appeal and award costs. Analysis and determination 12. Being the first appeal, the court relied on the case of Odera t/a AJ Odera & Associates v Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR), where the Court of Appeal stated as follows: “This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial NAKURU APPEAL NO. E005 OF 2024 JUDGMENT 7 | P A G E Judge are to stand or not and give reasons either way. See the case of Kenya Ports Authority versus Kuston (Kenya) Limited (2009) 2EA 212, wherein the Court of Appeal held inter alia that: “On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly, that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.” 13. In Selle v Associated Motor Boat Co(supra) the court stated as follows: “An appeal from the High Court is by way of re-trial, and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally. NAKURU APPEAL NO. E005 OF 2024 JUDGMENT 8 | P A G E An appeal to this court from a trial by the High Court is by way of retrial, and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself, and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.” 14. Having carefully considered the record of appeal and submissions by both counsels, the issue for determination before this Honourable Court is whether the trial court erred in awarding the Respondent the reliefs awarded. 15. Section 89 of the Employment Act provides as follows: “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 NAKURU APPEAL NO. E005 OF 2024 JUDGMENT 9 | P A G E default complained or in the case of continuing injury or damage within twelve months next after the cessation thereof.” 16. The above provision establishes strict timelines within which employment-related claims must be instituted. It creates two distinct categories: the first covers all claims arising from an employment contract other than those involving continuing injury, which must be filed within three years from the date the cause of action accrues. The second category concerns continuing injuries, which must be commenced within twelve months from the date the injury ceases. In effect, the law bars courts from entertaining claims filed outside these statutory limits, underscoring that limitation is jurisdictional and cannot be extended once the prescribed period has lapsed. 17. In G4S Security Services (K) Limited v Joseph Kamau & 468 others [2018] KECA 827 (KLR) the Court of Appeal held as follows: “Regarding ‘a continuing injury’, the proviso to Section 90 of the Employment Act requires that the claim be made within 12 months next NAKURU APPEAL NO. E005 OF 2024 JUDGMENT 10 | P A G E after the cessation thereof. The learned Judge did not determine when the continuing injury ceased, for purposes of computing the twelve months period. In the absence of a defined period, the learned Judge erred in concluding that the claims had no limitation of time. Further, upon the claimant’s dismissal, any claim based on a continuing injury ought to have been filed within one year, failing which it was time-barred.” 18. In Obatta v Radar Limited [2024] KEELRC 64 (KLR) the Court held as follows: “Regarding the claims for unpaid earned leave days and unpaid house allowance, shown to have accrued during the entire period of employment, it is my finding that these were in the nature of a continuing injury as contemplated in Section 90 of the Employment Act. The continuing injury ceased upon termination of the Appellant’s employment. Section 90 of the Employment Act provides as follows:- “Notwithstanding the provisions of Section 4(1) of the Limitation of Actions Act, 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 NAKURU APPEAL NO. E005 OF 2024 JUDGMENT 11 | P A G E 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.” The ceassation date of the continuing injury against the Appellant in the present case was the date of the Appellant’s termination. The termination was shown to have taken effect on 1/11/2018. The claim thereon ought to have been filed in Court within twelve months from the said date of termination. The Appellant filed his claim in the trial Court on 4/2/2021, over two years from the ceassation date. The claims are statute-barred and cannot be allowed.” 19. From the above case laws, claims for salary underpayments, overtime, leave, public holidays worked, and housing allowance are treated as continuing injuries. As such, they must be filed within twelve (12) months from the date the injury ceases, rather than under the general three-year limitation period. Failure to commence proceedings within that statutory window deprives the court of jurisdiction to entertain them. NAKURU APPEAL NO. E005 OF 2024 JUDGMENT 12 | P A G E 20. In the present appeal, the Respondent was employed by the Claimant as a driver earning Kshs.18,000/= until his employment terminated on 5th May 2020 when he resigned. The Appellant maintained that the termination was justified, while the Respondent asserted that he resigned but remained entitled to underpayment and overtime. The trial court found that the Respondent had not been terminated but had voluntarily resigned to pursue a new career path as he himself put it in his resignation letter. The trial court still awarded him Kshs.174,452.76 as house allowance, Kshs.25,404/= for underpayment, and Kshs.312,073.76 for overtime. The Appellant now challenges these awards. 21. The appellate court concurs with the trial court that the Respondent resigned, but emphasizes that although the suit was filed within the statutory period, the specific claims for underpayment and allowances spanning 2014 to 2018 were time-barred under section 89 of the Employment Act. This position is reinforced by Kitema v Perfect Scan Limited [2025] KEELRC 2682 (KLR), where the court held that resignation marked cessation of employment and that continuing injury claims such NAKURU APPEAL NO. E005 OF 2024 JUDGMENT 13 | P A G E as underpayment and house allowance must be filed within twelve months thereafter, awarding Kshs. 151,234.20 for underpayment and Kshs.19,502.85 for house allowance. 22. The court being persuaded by the pleadings of the parties, submissions and caselaws will revise the trial courts reliefs and replace the same as hereunder:- a.For underpayment, the court makes the following calculation as follows:- underpayment will be for one year hence from May 2020 to the date of filing the claim being April 2021. Legal Notice of 2018= 18881.21- 18,000= 881. 21 18,881.21 x 12= Kshs.226,573.20. 23. The Total award will be revised to Kshs.226,573.20. The Respondent was awarded costs of the trial court suit but in this appeal each party will meet their costs. 24. Also, interest is awarded at 14% per annum from date of this judgment till full payment. Order accordingly. NAKURU APPEAL NO. E005 OF 2024 JUDGMENT 14 | P A G E Dated, Signed and Delivered virtually at Nakuru this 10th Day of July, 2026. ANNA NGIBUINI MWAURE JUDGE ORDER In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate NAKURU APPEAL NO. E005 OF 2024 JUDGMENT 15 | P A G E just, expeditious, proportionate and affordable resolution of civil disputes. A signed copy will be availed to each party upon payment of Court fees. ANNA NGIBUINI MWAURE JUDGE NAKURU APPEAL NO. E005 OF 2024 JUDGMENT 16 | P A G E