https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2167

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT** **NAIROBI** (ON Makau J on 27th July 2026) **CAUSE NO. 1209 OF 2016** **JOSHUA MAKAU MUTISO..…..…………………………….CLAIMANT** **-VERSUS-** **YADINI HOLDINGS LIMITED.….….…………………RESPONDENT** **JUDGMENT** **Introduction** 1. By a Memorandum of Claim dated 20th June 2016, the Claimant sued the Respondent alleging that it failed to pay his terminal dues after resigning from employment on 31st December 2013. Therefore, he sought to recover the sum of Kshs. 427,680.00 made up of:- 2. ***Overtime remuneration for 2,800 hours worked calculated as 2,800 hrs x (Kshs. 18,000 x 1/225) x 1.5 = Kshs. 336,960.00.*** 3. ***Arrears on salary increments for the years 2009 to 2013, being: -*** ***2009 (Kshs. 18,000 x 7% x 12) = Kshs. 15,120.00*** ***2010 (Kshs. 18,000 x 7% x 12) = Kshs. 15,120.00*** ***2011 (Kshs. 18,000 x 9% x 12) = Kshs. 19,440.00*** ***2012 (Kshs. 18,000 x 9% x 12) = Kshs. 19,440.00*** ***2013 (Kshs. 18,000 x 10% x 12) = Kshs. 21,600.00*** ***Total = Kshs. 90,720.00*** 1. The Claimant also prayed for costs and interest and any other relief the court may deem just to award. 2. The Respondent admitted that it employed the claimant in 2004 as a Pest Man, a unionisable position until 2009 when it promoted him to a Clerk, which was a management position. It averred that, the claimant being in the management cadre enjoyed superior terms which were not found in the CBA for the unionisable staff. It also averred that the CBA cited by the claimant were not applicable to him and since he was in the management, he was not entitled to overtime pay. It further averred that it paid the claimant all his terminal after resigning from employment. Therefore, he prayed for the suit to be dismissed with costs. 3. The Claimant filed a Reply to the Statement of Defence dated 5th September 2016 joining issues with the Respondent on the Response to the claim. He reiterated the contents of the claim and averred that the Respondent's response largely contained admissions to his claim. 4. He maintained that he was indeed a Union Member as from 1st February 2006, and attached a copy of the Union Membership Card. He contended that, he enjoyed medical cover from 1st July 2011 and not June 2009 as alleged by the Respondent, and attached a letter dated 18th April 2011 dismissing the same.He prayed that the defence be struck out with costs and judgment entered for the Claimant as prayed in the claim. 5. After the close of the hearing, the suit went to full hearing and subsequently, the parties filed written submissions. **Evidence** 1. The Claimant testified as CW1 and stated that he is an Accountant, working for Fairview Estate since 2020. He adopted his written statement dated 20th June 2016 as his evidence and produced as exhibits, four documents in the list dated 20th June 2016, six documents his further list dated 12th July 2018 and five more documents in the list dated 6th May 2025. The documents were marked exhibit D.1-15 respectively. 2. In brief his evidence was that he was employed by the Respondent on 21st June 2004 as a Pest Man and later he became Secretary earning Kshs.18,000 per month. He was issued with an appointment letter and he served with loyalty and diligence until 31st December 2013 when he resigned from the respondent. 3. He stated that the employer failed to pay his terminal dues and he approached Kituo Cha Sheria who served a demand letter to the company. The demand was ignored and he filed this suit to recover overtime pay and arrears of salary increments. 4. He stated that he was working for more than 8 hours per day, that is from 6:30 a.m. to 8:30 p.m, especially during the high season from April to December every year. He stated that the tractors were arriving at the factory at 4:00 p.m. and then sorting was done up to 5:00 p.m. After the sorting, weighing and recording followed in his presence. He produced evidence (time sheet, coffee weighing counter sheet, and picking book)to substantiate his allegation. 5. He further testified that he was a member No. 60 of the union (KPAWU) and he was deducted union dues until February 2013 when he was forced to leave the union on allegation that he was in the Management. He denied that he was in management contending that he was never given any promotion letter since his appointment. He contended that the only letter given to him in 2011 was for salary increase it clarified that all the other terms of service remained the same. 6. He contended that his appointment letter provided for overtime. He further contended that he was paid in 2012 but not in 2010, 2011, and 2013. The Finance Manager, Samuel Kweri refused to pay him in the three years, but another Finance Manager Mr. Moses paid him. In 2013, the new Finance Manager, Mr. Benjamin Ongeri refused to pay him saying he was in the Management. He admitted that was a Clerk. 7. He stated that he reported the issue of unpaid overtime to his union but the matter was never resolved. He then resigned from the Respondent and moved to work elsewhere. 8. On cross-examination, the Claimant stated that he was employed by the Respondent as Clerk from 2009, but before that he was a Pest Man. He denied that his appointed to Clerk placed him in a Management position. He contended that his union dues continued to be deducted after he became clerk. 9. He clarified that, he was a data entry clerk and worked under the instructions of the Manager who was in charge of all records. However, he admitted that he was receiving raw data from supervisors, and he was also preparing the payroll. 10. He further admitted that the letter increasing his salary also granted him medical benefits but clarified that it never placed him in the pension scheme, which was a benefit for Managers only. He stated that medical cover is a right for all employees. He testified that the Finance Manager verbally told him to leave the union. He maintained that he had the right to join the union and to leave it. 11. He stated that salary increase was at the discretion of the employer and it did not need to be under the CBA. He maintained that he was not in the Management. 12. The Respondent called its Financial Controller, Mr. Benjamin Ongeri as its only witness. He testified as RW1and adopted his statement dated 25th September 2023 as his evidence. He then produced five documents in the list dated 15th September 2023, which were marked as exhibits. 13. In brief, he stated he stated that the Claimant was first employed as a Pest Man and in 2009 he was appointed as Accountant with full benefits of Management. His salary was under a scale which was not in the CBA for the union staff. He stated that the Claimant was responsible for overtimes and payroll which was approved by the Farm Manager. 14. He stated that, as an Accountant, the Claimant was reporting at 8:00 a.m. and leave after paying casuals, latest at 6:00 p.m. He stated that the work of sorting and weighing was by the supervisors. He stated that the Claimant never raised any claim of overtime until he resigned. 15. He further stated that the claimant was paid all his terminal dues as a Management staff. He further stated the claim for overtime was not justified because the Claimant was in the management. 16. He was not deducted union dues after joining Management. He reiterated that the Claimant was in charge of the payroll and as such, if he deducted union dues, he did so quietly. He stated that the Claimant was an Accounts Clerk able to prepare data. 17. On cross-examination, he maintained that the Claimant was in the Management but admitted that he had not filed any letter appointing the Claimant as management staff. He denied that he allegation forced the Claimant to leave the union. He contended that the Claimant knew that he would not continue in the union after joining the management. He admitted that the Claimant was not the final authority in the data, as there was approval by others. 18. In re-examination, RW1 stated that the payslips for 2009 to November 2013 indicated the Claimant as Management staff and his roles. They also showed that union dues were not deducted. **Submissions** 1. The Claimant filed written submissions dated 18th December 2025. He submitted that he was employed by the Respondent on 21st June 2004 through a written contract and he had documentary evidence to support his claim. He submitted that he served the Respondent with loyalty and diligence until his resignation on 31st December 2013. 2. He submitted that the Respondent increased salaries for all other staff as per their CBA, but he did not receive the increments. He further submitted that he worked overtime and it was agreed he would be paid, but the Respondent refused completely to pay. Therefore, he urged the court to condemned the respondent to pay. 3. The Respondent, on the other hand, submitted that there is no dispute that it employed the Claimant was on 21st June 2004 as a Pest Man reporting to the Farm Manager of Yadini Coffee Estate, as per the Letter of Appointment. It further submitted that in the year 2009, the Claimant's terms of service were revised when he was promoted to Office Clerk, which was management position. His salary was drastically adjusted on 1st June 2009 from Kshs. 7,500 to Kshs. 14,000 and he assigned managerial duties including drawing cheques and preparation of the payroll. The salary increment translated to 86.7% whereas CBA of 6th October 2014 granted only 7% salary increment. 1. It further submitted that, on 18th April 2011, the Claimant's terms of service were revised further by increasing his salary from Kshs. 14,000 to Kshs. 17,000 and he became eligible to join the Group's Medical Scheme with effect from 1st July 2011. His salary was again increased to Kshs. 18,000 with effect from 28th May 2012. 2. The Respondent submitted that following his promotion to management cadre, it was no longer tenable or optional for the Claimant to continue being a unionisable employee. It submitted that it was a policy of the company that when one accepts to join management, he or she must resign his membership from the union for him or her to qualify for management benefits which included medical cover and school fees bursary for children. 3. It contended that the said benefits were reserved to management staff only, and not to availed to unionisable employees. It observed that this crucial piece of evidence remained unrebutted and confirmed that the Claimant was promoted to management cadre. 4. It submitted that upon promotion, the Claimant's salary was no longer based on the Collective Bargaining Agreement dated 6th October 2014 signed between Kenya Plantation & Agricultural Union (KPAWU) and Federation of Kenya Employers (FKE) on behalf of the Respondent, but as per revised terms of service contained in the Respondent's letter dated 18th April 2011 and increment based on the Respondent's increment policy applicable to all management staff. 5. The Respondent submitted that the Claimant did not adduce evidence to support his allegation that he remained a valid unionisable member of KPAWU up to the tail end of his employment. It contended further that, the claimant did not adduce proof from the union to prove demonstrate that he regularly made contributions to the union nor did he prove by way of his payslips that union dues were regularly deducted from his salary. 6. It was submitted that, instead of seeking the intervention of the union in pursuing what he construed were his dues, the Claimant elected to seek the intervention of Kituo Cha Sheria who issued a demand letter dated 10th May 2016. 7. The Respondent submitted that overtime was paid on a monthly basis through the payroll as per the supervisor's recommendations. It contended that the Claimant never bothered to draw the attention of his immediate manager that he had worked overtime not did he, as the person in charge of recording, posting and signing in the supervisor's book the overtime workings for all employees who were entitled to overtime, include his claim, before forwarding the same to his immediate manager for approval. 8. The Respondent submitted that in any event, it was the testimony of the RW1, that no management staff was meant to work for more than eight (8) hours and hence they were not entitled to overtime. Further that, even if the Claimant was indeed entitled to the overtime he now claims, he could have included his name in the computation schedule and if the Respondent declined to pay, escalate the matter to the union, if at all he was a member. 9. It maintained that the Claimant never notified the Respondent or KPAWU that he had worked overtime and that he deserved to be paid. It submitted that the Claimant only decided to raise the issue of overtime in this suit as an afterthought after his voluntary resignation from employment. It reiterated that the Claimant did not explain to the court why he omitted his name in the overtime computation list. 10. The Respondent submitted that after the Claimant resigned from employment, all his final dues were paid to him in good faith as per the company policy and he acknowledged receipt without raising any issue. It observed that the failure by the Claimant to notify the Union of his grievance about overtime only goes to confirm that he was not a unionisable employee at the time of his resignation from employment. 11. The Respondent submitted that the Claimant cannot be heard to allege that he was denied annual salary increments in the sum of Kshs. 90,720, which amount he has computed using the CBA increment rate of 7% against the basic pay he was earning in the management cadre, whereas if he was a truthful man and believed he remained a unionisable employee, he should have computed such increment guided strictly by the CBA basic pay which a unionisable employee was entitled to. In short, the Claimant wants to have his cake and eat it at the same time. 12. With respect to overtime pay amounting to Kshs. 336,960, the respondent submitted that the Claimant has failed to table any iota of evidence to prove that he worked overtime and deserved pay. It maintained that the management cadre were not entitled to overtime and noted that the claimant did not adduce evidence to prove that his contract entitled him to overtime pay. It submitted that the function of courts is to give effect to the parties' intentions as expressed in their contracts and not to rewrite the same. 13. The Respondent submitted that the Claimant has not discharged his burden of proof at trial as provided for under the Evidence Act Section 3(2) (Cap 80 Laws of Kenya), noting that allegations are not proved by pleadings but rather by cogent evidence and testimonies. 14. The Respondent submitted that claims for underpayment and overtime constitute continuing injury and are time barred since the Claimant did not moved court within twelve (12) months of cessation of employment as envisaged by section 90 of the Employment Act, 2007. For emphasis, reliance was placed on **Michael Olewe & 37 Others -v- Hatari Security Guards Limited [2022] eKLR** and **Wanyonyi -v- Seneca East Africa Limited [2025] KEELRC 1353 (KLR)** where the court held that claims like underpayment of salary increment and overtime forms part of continuous injuries. 15. The Respondent further relied on **G4S Security Services (K) Limited -v- Joseph Kamau & 468 Others [2018] eKLR**, where the Court of Appeal held that a benefit which accrues at the end of each month amounts to continuing injury for purposes of the law of limitation and action should be instituted within twelve (12) months from date of cessation of the injury. **Issues for determination and analysis** 1. After considering the pleadings, the evidence, and the submissions, there is no dispute that the claimant was employed by the respondent as a Pest man in 2004 and later rose to become a Clerk. It is further fact that he resigned from the respondent 31st December 2013. The main issues for determination are: - 2. Whether the Claimant's suit is time-barred under Section 89 of the Employment Act, 2007. 3. Whether the Claimant remained a unionisable employee after his promotion to the position of Clerk. 4. Whether the Claimant is entitled to reliefs sought. 1. **Whether the Claimant's claim is time-barred.** 5. The Respondent submitted that the Claimant's claims for underpayment and overtime constitute continuing injury and are time-barred under Section 90 of the Employment Act, 2007, which requires that actions be brought within twelve (12) months from the date of cessation of employment. 6. The Claimant resigned on 31st December 2013 and filed this suit on 20th June 2016, which is approximately two and a half years after the cessation of employment. Prima facie, this appears to be outside the twelve-month limitation period under Section 90 of the Employment Act, 2007. 7. In **G4S Security Services (K) Limited -v- Joseph Kamau & 468 others [2018] eKLR**, the Court of Appeal held that:- ***“20 …Regarding a continuing injury, the proviso to section 90 of the Employment Act requires that the claim be made within 12 months next after the ceasation thereof. The learned judge did not determine when continuing injury ceased, for purposes of computing the twelve month period. In the absence of a defined period, the learned Judge erred in concluding that the claim had no limitation period. Further, upon the claimant’s dismissal, any claim based on continuing injury ought to have been filed within one year failing which it was time barred.”*** 1. The above decision is to the effect that, if an employee intends to recover all the accrued benefits that are continuing in nature, he must commence suit within 12 months after the continuing breach ceases. The court did not rule that an employee loses everything including claims that accrue within the normal limitation period of three years after the date when the cause of action arose. 2. It follows that, since in the instant case the suit was filed within three years after the resignation, any claim that accrued within the period of three years immediately before 21st June 2016 when the suit was filed, is not stale within the meaning of section 89 of the Employment Act. This includes any claim for overtime and salary arrears accruing from 21st June 2013 to 31st December 2013 when he resigned. 3. The corollary to the foregoing is that the court has jurisdiction to inquiry whether the claimant was entitled to overtime pay and arrears of salary increments between 21st June 2013 and 31st December 2013 when he resigned from the respondent, and not earlier than that time. 1. **Whether the Claimant remained a unionisable employee entitled to CBA benefits** 4. The Respondent contended that upon the Claimant's promotion to Office Clerk on 1st June 2009, he joined the Management Staff cadre and was no longer a unionisable employee. RW1 contended that after the promotion, the Claimant’s salary was increased by a huge margin, and he became eligible to get medical cover and school bursary, which were benefits reserved for the management only. 5. The Claimant, on the other hand, contended that he remained a union member and was never appointed to a management position. He contended that his Letter of Appointment (Exhibit 4) dated 21st June 2004 was proof that his employment as a Pest Man. He maintained that he was never given any promotion letter from the date of his appointment, but rather a letter for salary increase in 2011. The letter clarified that all the terms of appointment remained the same. 6. As regards medical cover, the Claimant maintained that all the employees were eligible for the same. He produced an Internal Memo by Njoge Services Limited dated 24th January 2005 (Claimant’s Exhibit 6) proposing for medical cover for non-management staff including clerks. He also produced his payslips and Payrolls showing regular deductions of Kshs. 360 for union dues and Kshs. 50 for COTU until November 2013. 7. RW1, admitted during cross-examination that he had no letter appointing the Claimant as management staff. He contended that the Claimant was the Accounts Clerk and he silently deducted union dues from his salary when he was not a union staff. However, he admitted that although the Claimant was responsible for the payroll preparation, the same was approved by the Farm Manager. 8. I have carefully considered the evidence presented by the two sides and the applicable law. The Respondent alleged that it promoted the Claimant to office clerk under the management cadre in 2009 and as per the respondent’s policy, he was assumed to have resigned from the union when he accepted to join the management. The Claimant denied the above allegations and maintained that he was never given promotion letter in 2009 but only salary increase letter in 2011 which stated that the rest of his terms and conditions remained the same. 9. In this case, the Respondent alleged that it promoted the Claimant from union staff to management cadre he was assumed to have resigned from the union as expected under the company Policy. However, it failed to table before the court any promotion letter and the alleged company policy. 10. The foregoing gaps notwithstanding, it clear that the Claimant was promoted from Pest Man to Accounts Clerk and his terms of service improved drastically. The Respondent has demonstrated by evidence after promoting the Claimant, his salary under the CBA was almost doubled. It has been shown that the Claimant was responsible for payroll preparation but he did not include himself among the union staff who were entitled to payment for overtime work. 11. The Claimant heavily relied on the Internal Memo by Njoge Services Limited dated 24th January 2005 (Claimant’s Exhibit 6) proposing for medical cover for non-management staff including clerks, to prove that his position was not in the management. However, as the documents suggests, it was a proposal by a person other than the respondent, for a medical cover for non-management staff. Even if the document was prepared by the Respondent, which has not been proved, nothing changes since did not include the claimant’s position of Accounts Clerk in the category of the non-management staff. 12. On the whole, I find that the Respondent has rebutted the Claimant’s case that he was never promoted to management position and that he continued serving as a union staff. First, there is evidence to show that he was enjoying better terms of service than what the union staff were getting from the CBAs. Second, he did not demonstrate by evidence that he was enjoying medical cover and education bursaries before becoming an Accounts Clerk. Third, he did dot prove by documents that he lodged grievance about overtime pay or withheld salary increments through the union before his exit from the company. 13. In the circumstances, I find that the Claimant has failed to prove on a balance of probability that, after rising to the position of Accounts Clerk, he remained a unionisable employee. On the contrary the Respondent has demonstrated that the Claimant was promoted to a management position and his terms of service were no longer governed by the CBA. 1. **Whether the Claimant is entitled to the reliefs sought.** 1. **Overtime** 14. The Claimant's Letter of Appointment (Exhibit 4) provided that he was entitled to overtime pay as per CBA regulations. However, as concluded above, the CBA ceased to apply to the Claimant after joining the management. That does not mean that he automatically lost the right to claim compensation for overtime worked. 15. The Claimant testified that he worked overtime, especially during peak seasons from April to December every year, that is, from 6:30 a.m. to 8:30 p.m. He explained that tractors arrived at the factory at 4:00 p.m., sorting was done until 5:00 p.m. Thereafter they started weighing and recording, which required his presence. He claimed payment for 2,800 hours of overtime work. He produced documentary evidence including time sheets, coffee weighing counter sheets, and picking books (Exhibits 5 to 15) in support of his testimony. 16. RW1 admitted that the Claimant used to work upto 6.00 pm but contended that the Claimant was in the management and therefore not entitled to payment for overtime work. As noted above, the Claimant never raised any claim of overtime until he resigned. He was responsible for preparing the Paybill but he excluded himself from payment for overtime. He did not give any reason for excluding himself from the said payment but that does not defeat the fact that he deserved compensation for the extra work done. 17. Based on the admission by the RW1 that he used to work from 8.00am to 6.00pm, I find that he worked one extra hour daily for six days a week. He was supposed to work 8 hours per day equaling 208 hours per month, excluding four rest days. He worked one hour overtime per day x 26 days a month totals 26 hours per month. He can only claim upto six months due to the limitation period highlighted above, thus kshs.18000/30 x 26 hours x 6months x 1.5 = Kshs. 20,250, which I award. * 1. **Arrears of salary increments (2009-2013)** 18. The Claimant contended that the successive CBAs (Exhibit 3) granted annual increments of 7% (2009, 2010), 9% (2011, 2012), and 10% (2013) to union members. The Claimant's payslips show a static basic salary of Kshs. 18,000 from 2009 to 2013, proving these increments were never applied. 19. I have already found that after joining the management, the CBA did not apply to him. Consequently, the claim for arrears of salary increments under the CBAs must fail. **Conclusion** 1. I have found that, upon promotion to Accounts Clerk, the Claimant was no longer a unionisable employee entitled to CBA benefits. Therefore, he is not entitled to payment for overtime worked and arrears of salary increments under CBAs as prayed. 2. However, I have found that he worked overtime under the new cadre and have awarded him compensation for six months as highlighted above. Consequently, I enter Judgment for him in the sum of Kshs. 20,250 plus interest at court rates from the date of filing the suit until payment in full. 3. Since the suit has to a large extent failed, I direct each party to bear own costs of the suit. **DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 27TH DAY OF JULY, 2026.** **ONESMUS MAKAU** **JUDGE** **Appearance:** N/A for Claimant N/A for Respondent