https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2327

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS AT KAKAMEGA** **CAUSE NO. E019 OF 2025** **EDWARD OKINYI OGADA……................................CLAIMANT** **VERSUS** **KASSIM KWEYU NDECHE &** **FRIDAH MUKAMI KITHINJI T/A** **FRIKAS LOUNGE AND GRILL……..…...…….RESPONDENTS** **(BEFORE HON JUSTICE DAVID NDERITU)** **JUDGMENT** 1. **INTRODUCTION** 2. Through J.W. Nafuye & Co. Advocates, the Claimant commenced this cause by way of a memorandum of claim dated 8th May 2025. The memorandum of claim was accompanied with a verifying affidavit sworn by the Claimant, a list of witnesses and documents, the Claimant’s written statement, all of even date, and copies of the listed documents. 3. The claim was amended through a memorandum of claim dated 1st October 2025 in which the Claimant is seeking for the following reliefs – 1. ***The sum of Kshs.994,638.4/= as pleaded in paragraph 5 herein above.*** ***PARAGRAPH 5 BROKEN DOWN AS FOLLOWS –*** ***Underpayment in the year 2020 Feb to the year 2021 November as (Waiter), Total months -22*** ***Minimum wage recommended Ksh 9,370.30/- - amount paid Ksh 8,500/- = Ksh 870.30/- (Difference)*** ***Difference (Ksh 870.30/-) × months (22) = 19,146.6/-*** ***After promotion (Accountant)*** ***Underpayment in the year 2021 (month of December)*** ***Ksh 30,266/- - Ksh 10,000/- × 1 month = Ksh 20,266/-*** ***Underpayment in the year of 2022 (Jan - Dec)*** ***Ksh 30,266/- - Ksh 10,000/- × 12 months = Ksh 243,192/-*** ***Underpayment in the year of 2023 (Jan - Dec)*** ***Ksh 30,266/- - Ksh 10,000/- × 12 months = Ksh 243,192/-*** ***Underpayment in the year 2024 (Jan - Dec)*** ***Ksh 30,266/- - Ksh 10,000/- × 12 months = Ksh 243,192/-*** ***Underpayment in the year 2025 (Jan - March)*** ***Ksh 30,266/- - Ksh 10,000/- × 3 months = Kshs60,798/-*** ***Leave days*** ***1.75 days (each month) × daily recommended rate Ksh 463.20/- (as waiter) = Kshs 810.6/- (each month)*** ***810.6 × 22 months = 17,833.2/-*** ***1.75 days (each month) × daily recommended rate Ksh 1454.90/- (as accountant) = Kshs2,544.5/-*** ***Total months as accountant (40)*** ***2,544.5/- × 40 = 101,780/-*** ***TOTAL LEAVE DAYS PAY = 101,780/- + 2,544.5/- = KSH 104,324.5/-*** ***Public Holidays*** ***6(holidays per year) Feb 2020- Dec 2021*** ***2020*** ***MADARAKA DAY 1st June*** ***Mashujaa day 20th oct*** ***Jamhuri day cec20*** ***Christmas Day 25th Dec*** ***Boxing Day 26th Dec*** ***2021*** ***Period as waiter Jan-Nov*** ***3 holidays*** ***8 x (463.20 x 200%=926.4/=*** ***Total = 7411.2/=*** ***Dec2021(period as Accountant)*** ***3 holidays*** ***Jamhuri Day, December 20th*** ***Christmas Day 25th Dec*** ***Boxing Day 26th Dec*** ***3 X (1454.90 X 200%)= 8729.4/=*** ***2022-2024*** ***18 Holidays*** ***18 X (1454.90 X 200%)=26,18.2/=*** ***2025*** ***1 X (1454.90 X 200/=2909.8/=*** ***Total Holidays) = Kshs45,238.6/=*** ***TOTAL …………………………………..Kshs994,638.4/=*** * 1. ***An order compelling the Respondent to issue the Claimant with a certificate of service under Section 51 of the Employment Act, 2007.*** 2. ***Costs of this suit and interests at court rates from the date of filing until payment in full.*** 3. ***Any other relief the Honourable Court may deem just and fit to grant.*** 1. The amended memorandum of claim was accompanied with a verifying affidavit sworn by the Claimant. 2. The Respondent entered appearance through Nandwa & Company Advocates and filed a response to the claim dated 23rd May 2025 seeking for the dismissal of the claim with costs for lack of merits. 3. The response to the claim was accompanied with a list of witnesses, a written witness statement of Kassim Ndeche dated 23rd September 2025. 4. The response to claim was amended and an amended response to claim dated 13th November 2025 was filed. 5. By consent, the court directed that the claim be canvassed by way of written submissions. Ms Nafuye for the Claimant filed written submissions dated 5th February 2026 and supplementary submissions dated 2nd April 2026. Mr. Idi for the Respondents filed written submissions dated 31st March 2026. 6. **THE CLAIMANT’S CASE** 7. The Claimant’s case is expressed in the amended memorandum of claim, his written statement, the documentary evidence filed and the written submissions by his counsel. 8. In the memorandum of claim, the Claimant stated that he was employed by the Respondents in February 2020 as a waiter earning a monthly salary of Kshs8,500/=. In December 2021, he was promoted to the position of accountant earning Kshs10,000/= per month. He averred that he worked continuously for nearly five years until 4th April 2025 when he resigned after the Respondents failed to pay his salary for approximately four months. 9. The Claimant pleaded that throughout his employment, the Respondents failed to comply with the ***Employment Act*** and the applicable ***Regulation of Wages Orders.*** He claimed that he was consistently underpaid, both while serving as a waiter and after his promotion to an accountant. He further alleges that he was not paid for accrued annual leave, work performed on public holidays, and that after leaving their employment, the Respondents failed to issue him with a certificate of service as required under ***section 51 of the Employment Act.*** 10. Consequently, the Claimant seeks payment of a total sum of Kshs994,638.40, being the aggregate of his claims for underpayments, accrued leave, pay public holiday and other dues. He also seeks an order compelling the Respondents to issue him with a certificate of service, together with costs of the suit, interest at court rates, and any other relief that the Court may deem just and fit to grant. 11. **THE RESPONDENTS’ CASE** 12. The Respondents’ case is contained in the amended response to the claim, the written witness statement of the 1st Respondent and, the written submissions by their counsel. 13. The Respondents denied that the Claimant was employed as pleaded, promoted to the position of an accountant, or that he ever performed accounting duties. Their case is that the Claimant was never a permanent employee but was engaged on a contractual basis, working only three to four days per week on an interchangeable basis. They maintain that the Claimant only performed the duties of a waiter, was not qualified to undertake accounting duties, and that such duties were never assigned to him as the 1st Respondent doubled as the accountant. The Respondents further deny that the Claimant was underpaid, is owed any salary arrears, unpaid statutory remittances, or is entitled to any of the monetary reliefs sought. They also aver that the Claimant habitually left employment on several occasions between 2020 and 2025 and, by virtue of his work schedule he had sufficient leave days. The Respondents further contend that this Court lacks jurisdiction to entertain the suit as the same ought to have been filed in a magistrate’s court. 14. It was further stated that the claim is unmeritorious and instituted merely to obtain money from the Respondents and, accordingly, the Respondents prayed that the same be dismissed with costs. 15. **SUBMISSIONS** 16. Counsel for the Claimant isolated two issues for determination – *Whether there existed an employer–employee relation between the parties;* and, if so, *Whether the Claimant is entitled to the reliefs sought*. 17. It was submitted that the Respondent in their witness statement conceded that the Claimant worked for them on a contractual basis and that amounted to an admission of an employment relationship within the meaning of ***Section 2 of the Employment Act***. 18. On the monetary claims, counsel argued that the Respondents’ denial of salary arrears, underpayment and statutory dues was unsupported by evidence, as they failed to produce pay slips, payment records, bank statements or statutory remittance records. Counsel cited ***Sections 10(7), 18, 20 and 74 of the Employment Act*** in submitting that the burden of keeping and availing employment records is on the employer. Counsel further contended that the Respondents failed to prove the allegation that the Claimant repeatedly left employment between 2020 and 2025 and therefore, the Claimant's evidence of continuous service stands unchallenged. 19. It was submitted that the Respondents' failure to pay salary for four consecutive months constituted a fundamental breach of the employment contract, entitling the Claimant to the salary arrears and the other pleaded reliefs. 20. It was further submitted that the Claim for Kshs994,638.40 had been consistently pursued and was not abandoned. Counsel submitted that the pleaded sum expressly included claims for underpayment, both as a waiter and as an accountant, computed in accordance with the ***Regulation of Wages (General) (Amendment) Order, 2022***. 21. Counsel for the Claimant further argued that, contrary to the Respondents' contention that salary arrears had not been specifically pleaded, the amended memorandum of claim expressly pleaded that the Claimant resigned after four months of unpaid salary and sought all monetary dues arising from the employment. Counsel therefore urged the Court to find that the Claimant has proved his case on a balance of probabilities and grant to him the reliefs sought 22. On the other hand, counsel for the Respondents submitted on the following issues -*Whether or not the Claimant was promoted and thus underpaid;* and, *Whether or not the Claimant is entitled to the reliefs sought.* 23. On the first issue, it was submitted that the Claimant failed to prove the alleged promotion, having produced no letter of appointment or promotion and no evidence that he possessed the requisite qualifications to perform accounting duties. Counsel argued that the admitted salary increment did not amount to a promotion but merely reflected compliance with the statutory minimum wage, noting that the applicable minimum wage for a waiter at the material time was Kshs9,370/= yet the Claimant earned Kshs10,000/= a month. It was therefore contended that the Claimant was not underpaid. 24. On the second issue, Counsel submitted that although the employment relationship was not disputed, the Claimant failed to prove his claims for underpayment, unpaid leave days and public holidays through his written submissions, and those claims should therefore be deemed abandoned. Counsel further argued that the Claimant solely relied on an M-Pesa statement without explaining the transactions therein and had neither specifically pleaded nor quantified any claim for salary arrears in the amended memorandum of claim. It was submitted that parties are bound by their pleadings and that salary arrears must be specifically pleaded and strictly proved. Counsel accordingly urged the Court to find that the Claimant had neither pleaded nor proved the alleged salary arrears and hence dismiss the entire claim with costs. 25. **ISSUES FOR DETERMINATION** 26. The court has carefully and dutifully gone through the pleadings filed, the written witness statements by the parties, the documentary evidence filed by the Claimant, and the written submissions by Counsel for both parties. The following issues are for determination – 1. ***Whether the court has the jurisdiction to entertain this claim?*** 2. ***What was the nature of the employment relationship between the parties?*** 3. ***Whether the Claimant is entitled to the reliefs sought; and,*** 4. ***Who should bear the costs of the cause?*** 27. **JURISDICTION** 28. The jurisdiction of the Employment and Labour Relations Court (ELRC) is derived from ***Article 162(2) of the Constitution*** that grants the Court original and appellate jurisdiction to hear and determine employment and labour relations disputes without any monetary limitation. 29. Further, pursuant to ***Article 48 of the Constitution*** on the right to access justice, ***Section 3 of the Employment and Labour Relations Court Act (the Act)*** sets out the objectives of the Court as to facilitate the just, expeditious, and efficient resolution of disputes. Under ***Section 29 of the Act***, the Chief Justice is empowered to appoint magistrates to hear and determine employment disputes. 30. In exercise of that mandate, the Chief Justice issued ***Gazette Notice No. 6024 dated 22 June 2018***, conferring jurisdiction upon specific magistrates’ Courts to hear employment and labour disputes where the employee’s gross monthly salary did not exceed Kshs80,000/=. 31. The foundation of a claim before ELRC, including matters heard by designated magistrates under ***Gazette Notice No. 6024 of 2018***, is the existence of an employment relationship. Importantly, the Gazette Notice above did not oust or diminish the original jurisdiction of ELRC to hear and determine employment and labour relations disputes. Rather, its purpose was to enhance access to justice by enabling Magistrates’ Courts to handle relatively smaller employment claims. 32. It therefore follows that, notwithstanding the fact that the Claimant herein was earning less than Kshs80,000/= per month, this Court has the requisite jurisdiction to hear and determine the claim. The preliminary objection by the Respondent, therefore, has no merits and is hereby dismissed. 33. **EMPLOYMENT** 34. The Claimant contends that he was employed by the Respondents as a waiter from February 2020, earning a monthly salary of Kshs8,500/=. In December 2021 he was promoted to the position of an accountant earning Kshs10,000/= per month. He resigned on 4th April 2025 in protest and frustration due to non-payment of his salary for four months. 35. The Respondents’ case is that the claimant was only engaged on contractual basis, working for only three to four days a week as a waiter and was never promoted to an accountant. The Respondents stressed that the Claimant did not qualify to work as an accountant. 36. The Respondent further stressed that the Claimant’s salary was only increased to Kshs10,000/= but it was not based on a promotion. 37. It is not in contention that the Claimant was initially engaged as a waiter. The contest is whether he was ever promoted to an accountant. Under the ***Accountants Act (Cap. 531),*** an accountant is defined as ***“a person registered as an accountant under section 24 of this Act and is a member as defined in section 4(2)(a) and (b) with expertise achieved through formal education and practical experience, and shall be held to a high professional standard in respect to—(a)demonstrating and maintaining competence in accountancy in line with International Accounting standards;(b)compliance with the Institute's code of ethics;(c)maintaining good standing status; and(d)subject to enforcement of the rules and regulations of the Institute.”*** 38. The claimant did not avail evidence demonstrating that he is qualified and registered as an accountant. It is basic presumption of the law that he/she who alleges must prove a fact as elucidated under ***Section 107 of the Evidence Act.*** The Claimant failed to prove that he was qualified as an accountant and, therefore, the court finds and holds that he was employed as a waiter and remained as such till the end of the relationship. 39. **RELIEFS** 40. The court has determined that the Claimant’s entire engagement with the Respondents was that of a waiter. It is not in dispute that the Claimant resigned from employment for what he described as frustration after the Respondents failed to pay his monthly salary for four consecutive months. 41. The first prayer is for underpayment. The Claimant pleaded that from February 2020 to November 2021 he earned a monthly salary of Ksh8,500/= as a waiter instead of Ksh9,370.30, which was the recommended minimum wage. He further claimed that he was entitled to a salary of Kshs30,266/- a month as an accountant yet, he purportedly received Kshs10,000/= a month from December 2021 to March 2025. The court has already determined that the Claimant did not prove that he worked as an accountant. The Claimant only relied on the ***Regulation of Wages (General) (Amendment) Order, 2022.*** However, during the period of the Claimant’s engagement with the Respondents, three wage regulations applied. **Regulation Of Wages (General) (Amendment) Order, 2018** 1. The ***Regulation Of Wages (General) (Amendment) Order, 2018*** came into force on 1st May 2018 and applied until 30th April 2022. The Claimant was employed in February 2020 within Kakamega town. Kakamega town is among the former now defunct municipalities under the repealed ***Local Governments Act***. From 1st May 2018 until 30th May 2022, a waiter was entitled to a monthly salary of Kshs13,005.70 within a municipality. The Claimant pleaded that he was entitled to Kshs9,370.30, which was payable in 2022 to a waiter in other areas other than the former municipalities. **From February 2020 to November 2021(22 months)** 1. The Claimant earned KShs8,500/= monthly. He was entitled to a monthly salary of Kshs13,005.70, hence an underpayment of Kshs4,505.70. He is thus entitled to Kshs4,505.70 x 22 months = Kshs99,125.40. 2. From December 2021 to April 2022 (five months), the Claimant earned Kshs10,000/= monthly. He pleaded that he was entitled to Kshs30,266/=. The Claimant was entitled to a salary of Kshs13,005.70 as per the Wages Regulation, 2018 for that period as a waiter. The underpayment for the 5 months was thus Kshs13005.70 –Kshs10,000/= Kshs3,005.7 x 5months = Kshs15,028.5. 3. In total, under the ***Regulation Of Wages (General) (Amendment) Order, 2018***, the Claimant was entitled to Kshs114,153.90 underpayments. **Regulation of Wages (General) (Amendment) Order, 2022 (Legal Notice 125 of 2022)** 1. This onecame into force on 1st May 2022. The same was applicable until October 31st 2024 (30 months). The Claimant received a salary of Kshs10,000/= monthly and pleaded that he was entitled to a monthly pay of Kshs30,266/=. A waiter within a former municipality was entitled to Kshs14,566.40 monthly, resulting in an underpayment of Kshs4,566.40/- x 30 months = Kshs136,992/=. **Regulation of Wages (General) (Amendment) Order, 2024 (Legal Notice 164 of 2024** 1. This one came into force on 1st November 2024 and the same was applicable until March 2025 (five months). The Claimant received Kshs10,000/= monthly and pleaded that he was entitled to a monthly pay of Kshs30,266/=. A waiter within a former municipality was entitled to Kshs15,220.38 monthly and hence there was an underpayment of Kshs5,220.30 x 5 months = Kshs26,101.90. 2. The Claimant was thus underpaid a total of Kshs114,153.90 + Kshs136,992/= + Kshs26,101.90 = Kshs277,247.80. **Leave** 1. Under ***Section 28 of the Employment Act – (1) An employee shall be entitled— (a) after every twelve consecutive months of service with his employer to not less than twenty-one working days of leave with full pay.*** 2. No evidence was adduced by the Respondent that the Claimant took leave at any time. An employer is mandated under ***Section 10 of the Employment Act*** to maintain employment records and hence it is the Respondents, as the custodians of the records, who are bound to avail the same in court if they disputed the allegation by the Claimant. In that regard, the Claimant was entitled to 28 days’ leave for every 12 months of service completed as hereunder – **Year 1** 1. From 1st February 2020 to 1st February 2021, a period of 12 months the Claimant was entitled to one month of leave while earning a monthly salary of Kshs13,005.50. **Year 2** 1. From 2nd February 2021, to 2nd February 2022 the Claimant was entitled to Kshs13,005.50. **Year 3** 1. 3rd February 2022 to 3rd February 2023 the Claimant was entitled Kshs14,566.40 being one month’s salary for annual leave. **Year 4** 1. From 4th February to 4th February 2024 the Claimant was entitled to Leave Pay of Kshs14,566.40 based on the regulated wage payable per month. **Year 5** 1. 5th February 2024 to 5th February 2025 the Claimant was entitled to a monthly salary of Kshs15,220.38 and this is payable on the annual leave. 46. The total of the above sums is Kshs70,364.18 **Public Holidays** 1. There was no evidence produced by the Respondent that the claimant had not worked during public holidays. An employer is demanded under ***Section 10 of the Employment Act*** to maintain employment records and to avail the same whenever necessary. The Respondent did not avail any such records. The court takes judicial notice that the hospitality industry picks up during public holidays and all workers and more so waiters are expected to be at work. 2. For 2020, the claimant claimed to have worked on five holidays. During this period, he was entitled to a salary of Kshs9,370.30 monthly. The daily pay = Kshs13,005.50/30 = Kshs433.52. The holiday pay for the five days = Kshs433.52 x 5 holidays = Kshs2,167.60. 3. Between January and November 2021, the claim was unspecified on the holidays that he had worked. The claim only indicated that he worked on three holidays, which was ambiguous and not specifically pleaded and proved. 4. For December 2021, the Claimant pleaded for pay for three holidays. He was entitled to a salary of Kshs13,005.70 monthly. Therefore, the holiday pay is = Kshs13,005.70/30 (daily pay) = 13,005.70/30 = Kshs433.52 x 3 = Kshs1,300.56. 5. The total holiday pay was thus Kshs3,468.16. 6. For the period between 2022 and 2025, the claimant did not specifically plead on which holidays he had worked. The claim for that period was ambiguous and thus not proved. 7. The other prayer is for a certificate of service under ***Section 51 of the Act***. The issuance of the same is unconditional and the court hereby orders that a certificate of service be issued and delivered to the Claimant within 30 days of this judgment. 8. **COSTS** 9. Costs to the claimant. 10. **ORDERS** 11. The court issues the following orders – 12. ***The Claimant is awarded a total of Kshs351,080.14/= together with interest thereon from the date of this judgment till payment in full. The said sum is made up as follows –*** 13. ***Underpayment……………….…….Kshs277,247.80/=*** 14. ***Leave Pay………………………..….Kshs70,364.18/=*** 15. ***Public Holidays………........................Kshs3,468.16*** ***Total……............................ Kshs351,080.14/=*** ***\*The award is subject to statutory deductions.*** 1. ***Certificate of service shall be issued by the Respondent to the Claimant and the same be delivered to his Counsel on record within 30 days of this judgment.*** 2. ***Costs to the Claimant.*** **DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS30TH DAY OF JULY 2026.** **……………………** **DAVID NDERITU** **JUDGE**