https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1730

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI ELRC CAUSE NO. 1561 OF 2017 DIANA AKOTH OPANDE…….……………………………………………………CLAIMANT * VERSUS - BIBLE BAPTIST CHRISTIAN ACADEMY……………………...…………1ST RESPONDENT REV. OLE KONNERUP/B.O.M. CHAIRMAN…...………………...………2ND RESPONDENT Coram Before Lady Justice Jemimah Keli C/A Otieno JUDGMENT 1. The claimant disputed payable salary and terminal dues and filed a memorandum of claim dated 2nd August 2017 against the respondents and sought for the following relief- 1. This Honorable Court deem it fit to find the deductions unlawful and order the refund of all accrued money and all deductions made without my consent. 2. In the affirmative, the Honorable court to order the respondent to pay back all the salary and allowance arrears as hereunder. 1. Underpayment of salary during school Holiday months 2. Underpayment of salary which was accrued on minimum wage differences. 2. The Claimant’s claim was accompanied by her list of documents dated 2nd August 2027; witness statement of the same date; and list of witnesses of the same date. The Claimant also filed a supplementary list of documents dated 6th November 2019, with the bundle of documents attached; and a supplementary affidavit dated 29th November 2019, along with its attachments. The Claimant later filed a further list of documents dated 27th July 2023, with the bundle of documents attached, and a witness statement of Peter Opande Sumba dated 18th August 2023, together with the attachments. 3. In response to the claim, the Respondents appeared on 22nd October 2019 through the law firm of J.M. Chege & Company Advocates, and filed a defence dated 22nd October 2019. To support their defence, the Respondents submitted a witness statement made by the 2nd Respondent and filed on 29th October 2019; as well as a list and bundle of documents dated 24th October 2019, with the bundle of documents attached. 4. To counter the Respondent’s case, the Claimant filed a Reply dated 5th November 2019. Hearing and evidence 1. The claimant’s case was heard before Justice OCHARO Kebira on 31st July 2023, where she testified, produced her documents, and called her father, Peter Ogande Sumba, as CW2. The respondent’s case was heard before me on 2nd December 2025, where the witness was Re Ole Konnerup, who testified on oath, adopted his undated witness statement filed in court on 29th October 2019 as evidence in chief. He told the court there were no figures stated in the claim. He was cross-examined by counsel for the claimant, Mugwe. The Claimant’s case in summary 1. The Claimant’s case is that she was employed by the 1st Respondent after completion of her High School education in the year 2012, as an ECDE teacher/general labour worker, at a monthly salary of Kshs. 3,000/- without a housing allowance. The Claimant states that her salary was increased to 4500/- without a housing allowance in the year 2012/2013, and again to Kshs. 9,250/- without a housing allowance. The Claimant’s working hours while in the employ of the Respondents was from 6.30 am to 5.30 pm five days a week. The Claimant emphasizes that she was a permanent worker, as opposed to a volunteer worker/teacher as alleged by the Respondents, and that she remained with the Respondent from 22nd July 2011 to September 2017 when she was dismissed by being asked not to show up for work until the case that she filed in court was concluded. 2. The Claimant states that she has enjoined the 2nd Respondent, who is an American missionary in the suit, as he has been running the 1st Respondent school in Kenya since the year 2002, and has always referred to himself as the chairman of Board of Management/Trustee of the 1st Respondent at all times during the Claimant’s employment with the Respondent. The Claimant denies that the 1st Respondent school is a charitable organization as alleged by the 2nd Respondent, and instead avers that it is one of the most expensive private Primary Schools within Ruiru area, with parents paying school fees through bank account number 0870294053391. 3. The Claimant’s complaint against the Respondents is that throughout her period of employment with the 1st Respondent, her wages were below the minimum wage guidelines and further she was not paid a house allowance. 4. The Claimant avers that all teachers at the 1st Respondent school were directed by the Respondents to bring at least one child of their choice to study in the school free of charge. The Claimant enrolled one Angel Atieno, her niece, in the 1st Respondent school. The Claimant insists that he niece did not study for free because of her inability to pay school fees, but rather because she was her relative and as per the Respondent's directions. 5. The Claimant avers that a trained ECDE teacher (Holding a Diploma) duly registered by the Teachers Service Commission on 21st May 2015 pursuant to Section 23 (2) of the Teachers Service Commission Act 2012 which states that a person shall not be engaged in the teaching service unless such a person is registered by the Teachers Service Commission, the Claimant expected to be paid a fair wage. She explains that she trained at Shanzu Teachers Training College, presumably during the early years of her employment with the Respondent, prior to her registration as a teacher with the Teachers Service Commission. 6. The Claimant indicates that her wages, while below the minimum wage, were subjected to statutory deductions namely NHIF and NSSF, which were remitted to the relevant authorities by the Respondents on her behalf, save for July, 2011, August 2011 and June 2017. The Claimant also claims that during her employment with the Respondents, she did not utilize her cumulative annual leave which she calculates at 126 days for the six years. She, however, admits that when her mother fell sick in April-July 2017 she requested for compassionate leave to be recovered from her annual leave, and denies absconding from work. She points out that during the period when she is alleged to have absconded, she requested and was granted a salary advance which was recovered in full. When she was away on compassionate leave from April to July 2017, the Claimant states that she granted her father authority to collect her salary on her behalf. 7. Other grievances put forth by the Claimant are that the Respondents withheld her salary during school holidays without her express authority contrary to Section 25(1) of the Employment Act; that she was discriminated against contrary to Article 27 (1) (2) (4) and (5) of the Constitution of Kenya; that the Respondents violated her right to fair labour practices under Article 41; and that the Respondents violated her right to fair administrative action under Article 47 (1) of the Constitution. Respondents’ case in brief 1. The Respondents admit that they engaged the Claimant, but state that she was a volunteer worker rather than a permanent worker. Further, the 2nd Respondent denies that he is a trustee of the school. 2. On the issue of the Claimant’s wages, it is the Respondents’ case that the 1st Respondent school is a not-for-profit institution catering to pupils from disadvantaged backgrounds, whose parents are unable to pay school fees. The school relies on donations from well-wishers to operate the school, and as such, only offers its teachers a modest volunteer allowance. The Respondents insist that the Claimant was aware, when she joined the school as a general worker and later on took on teaching responsibilities, that she would only receive the volunteer allowance as aforesaid, but began agitation for higher pay. 3. On the issue of non-payment of house allowance, it is the Respondents’ case that the minimum wage order that the Claimant refers to sets out prescribed consolidated minimum wages. They point out that the consolidated minimum wage for 2011 and 2012 is indicated by the Claimant as Kshs. 4854, when this amount was operational from 1st May 2013; and that of 2013 and 2014 is indicated by the Claimant as Kshs. 9024/- when this amount was operational from 1st May 2015. The Respondents conclude that the present case is a ploy by the Claimant to unjustly enrich herself, and brought in bad faith. They infer bad faith from the Claimant’s desertion from July 2017 to September 2017. DETERMINATION 1. The parties filed written submissions. Issues for determination 1. The court on perusal of the pleadings and the submissions discerned the issues for determination to be- 1. Whether the claimant was an employee of the respondent. 2. Whether the relief sought was merited. Whether the claimant was employee of the respondent 1. The 1st respondent was represented by Rev Ole Konnerup (2nd respondent) who relied on his witness statement and stated that the 1st respondent was a primary school offering basic education to children in Ruiru from socially and economically disadvantaged backgrounds. The witness averred that the school relies on donations, as some of the parents were not able to raise the highly contested fees they charge. He contended that the claimant joined them as a volunteer in 2012 with the understanding that the school was a non-profit institution. That she worked as a general labourer and staff. Sometimes she picked teaching responsibilities. That they paid her as a volunteer, as the school was unable to take her as an employee. The claimant told the court she was not aware of being a volunteer and asserted her employment rights. 2. The employee is defined under the Employment Act as-‘ employee" means a person employed for wages or a salary and includes an apprentice and indentured learner;’ 3. The respondent stated that the claimant worked as a general labourer and later was given teaching responsibilities. The claimant said she was not aware of being a volunteer. The claimant was with the respondent from 2011 to 2017. It is unreasonable to expect the claimant to have been a volunteer for that long a period. A general labourer is recognised under the Minimum Wages Orders as a worker. The claimant produced NSSF statement which indicated the 1st respondent as the employer. The 2nd respondent was not candid in treating the claimant as a volunteer and at the same time placing her in the workers' statutory social security scheme for workers. The court finds the claimant was an employee of the respondent. Whether the claimant was entitled to relief sought. 1. The court finds that the respondent admitted underpayment of the claimant. Payment of less salary than in the gazetted minimum wages is illegal. Section 26 of the Employment Act states- ‘(2)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 favourable to an employee than the terms provided in this Part and Part VI, then such favourable terms and conditions of service shall apply’’ The regulations are the Minimum Wages Orders. What is in contention is the applicable scale. The court noted the Agricultural Wages Orders had consolidated wages. The first respondent is not in the agricultural sector, thus the Agricultural Wages Orders were not applicable to the claimant. What was applicable was the general minimum wages orders before the court. The claimant tabulated and produced her tabulation before the court. The respondent submits that they cannot abide as the tabulation is not a pleading and the court agreed. The claimant pleaded earned salary and said it was without house allowance; Pleaded her salary was wrongly reduced during school holidays in the months of April, August, and December; Pleaded underpayment of wages under the minimum wages order. In prayers, the claimant sought the following: - 2. This Honourable Court deems it fit to find the deductions unlawful and order the refund of all accrued money and all deductions made without my consent. 3. In the affirmative, the Honorable court to order the respondent to pay back all the salary and allowance arrears as hereunder. * 1. Underpayment of salary during school Holiday months 2. Underpayment of salary which was accrued on minimum wage differences. 4. I find the tabulation was not necessary, though helpful, as the pleadings were enough to determine the claims. The respondent did not dispute the tabulations, save for the applicable rates. The challenge was merely technical. The representative was free to file their own tabulation. 5. The court held the deductions of salary during school holidays was unjustified and contrary to section 10(5) of the Employment Act which reads- ‘(5)Where any matter stipulated in subsection [(1)](https://new.kenyalaw.org/akn/ke/act/2007/11/eng%402024-04-26#part_III__sec_10__subsec_1) changes, the employer shall, in consultation with the employee, revise the contract to reflect the change and notify the employee of the change in writing’. The provision is to be applied with modifications in unwritten contracts like in the instant case. The claim for deductions is allowed as prayed and tabulated for Kshs. 43,291. 6. House allowance is payable at a rate of 15?% and not 20% as indicated in the tabulation of the claimant under the General Wages Regulations. The applicable basic salary is as stated in the Minimum Wages Orders. Thus July to December 2011- 15%x4854 thus Ksh 728.10 x6 Kshs.4368.60 2012-15%x 4854 thus Kshs 728.10 x 12= 8737.20 2013 – 15% x 9024 thus Kshs 1353.60 x12 = 16243.20 2014 – 15% x 9024 thus Kshs 1353.60 x12 = 16243.20 2015-15%x 10107.10 thus Kshs 1516.06 x12 = 18192.70 2016-15%x 10107.10 thus Kshs 1516.06 x12 = 18192.70 2017- 15%x 10107.10 thus Kshs 1516.06 x7 = 10612.40 Total unpaid housing allowance- Kshs 92,590. 1. Underpayment of basic salary under the Minimum Wages Orders- 2011 min basic pay Kshs, 4854 paid Kshs. 3000 difference 1854 due 11124 2012 min basic pay Kshs, 4854 paid Kshs. 4500 difference 354 due 4248 2013 min basic pay Kshs, 9024 paid Kshs. 6500 difference 2524 due 30288 2014 min basic pay Kshs, 9024 paid Kshs. 6500 difference 2524 due 30288 2015 min basic pay Kshs, 10107.10 paid Kshs. 7500 difference 2607.10 due 31285 2016 min basic pay Kshs, 10107.10 paid Kshs. 7500 difference 2607.10 due 31285 2017 min basic pay Kshs, 10107.10 paid Kshs. 9250 difference 857.10 due 5999 Total underpayment Kshs. 144,517 1. Total award back pay Kshs. 280,398/-. 2. The claimant is awarded costs of the suit. 3. It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 19TH DAY OF JUNE, 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Claimant: Mugwe Respondents: Ms. Chege