[2002] KEHC 602 (KLR)
The court found that the plaintiffs were entitled to overtime payment as per the agreement with the defendant, which allowed for either cash payment or leave in lieu. The defendant failed to provide evidence that the plaintiffs were given the option to choose or that any of them took leave in lieu. The court was...
Source-derived case information.
- Citation
- [2002] KEHC 602 (KLR)
- Parties
- Plaintiff: Mombasa Fire Brigade Association; Defendant: Municipal Council of Mombasa
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 125 "A" of 1998
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- judgment for the plaintiff
- Legal Topics
- Overtime Entitlements, Employment Contracts, Remedies for Breach, Leave in Lieu, Payment of Wages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mombasa Fire Brigade Association
Plaintiff
Municipal Council of Mombasa
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the plaintiffs are entitled to overtime payment in cash or leave in lieu for extra hours worked.
- 2 Whether the defendant provided the plaintiffs with the option to choose between cash payment and leave in lieu as per the agreement.
- 3 Whether the plaintiffs' claim for overtime payment is premature.
Ratio Decidendi
The court found that the plaintiffs were entitled to overtime payment as per the agreement with the defendant, which allowed for either cash payment or leave in lieu. The defendant failed to provide evidence that the plaintiffs were given the option to choose or that any of them took leave in lieu. The court was satisfied that due to work pressure, it was not possible for the plaintiffs to take time off, and the claims for overtime payment were approved by the Town Clerk. As such, the only practical remedy was payment in cash. The defendant's argument that the suit was premature was rejected, as the plaintiffs had established their entitlement and the defendant had not fulfilled its...
Court Disposition
judgment for the plaintiff
Orders
- Judgment entered for the plaintiff in the sum of Shs. 3,436,489.55.
- Plaintiff awarded interest on the sum claimed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 125 “A” OF 1998
MOMBASA FIRE BRIGADE ASSOCIATION ….......… PLAINTIFF
V E R S U S
MUNICIPAL COUNCIL OF MOMBASA …………. DEFENDANT
JUDGMENT
The plaintiff is an association of employee of the defendant in its department of Fire Brigade and Ambulance Service. The Plaintiffs plead the existence of an agreement with the defendant which agreement is not disputed by the defendant. Under the said agreement the plaintiffs were entitled to overtime payment for extra hours worked over and above the 52 hours lawfully agreed upon. The payment was to be paid by cash or by granting leave in lieu of the overtime worked.
The defendant does not dispute that the plaintiff worked overtime as claimed namely from August 1994 to February 1998 or that the cash payable is as the pleaded Shs. 3. 436. 489/55. The defence witness Patrick Anthony Charo said that the plaintiffs were “not entitled to payment because there are stages they undergo before they are paid. The plaintiffs presented their case to the council and the council opted to give them off day instead of cash.
“Payment of overtime is a right. The suit is premature the plaintiffs never came to claim off days.”
The evidence shows that there was option for plaintiffs to accept cash or take off days. No evidence is shown that the defendant gave the plaintiffs right to exercise option. There was no record that some plaintiffs, as alleged by defendant or any of them did take the leave option. However the plaintiffs showed that their claims were approved by the Town Clerk and that it was never possible for any of them to take time off because of pressure of work. Therefore only payment in cash was possible.
I am convinced that there is no defence to the plaintiffs claim. The plaintiffs are therefore entitled to their claims in cash as claimed.
I enter judgment therefore, for the plaintiff in the sum of Shs. 3. 436. 489. 55 plus interest and costs.
Dated this 17th day of June, 2002.
J. KHAMINWA
COMMISSIONER OF ASSIZE
Read in presence of Mr. Karisa
J. KHAMINWA
COMMISSIONER OF ASSIZE