Edward Ochieng v Dan Okumu [2022] KEELRC 401 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA

AT NAIROBI

CAUSE NO. 2589 OF 2016

(Before Hon. Justice Ocharo Kebira on 24thMarch 2022)

EDWARD OCHIENG.......................................................................................CLAIMANT

-VERSUS-

DAN OKUMU................................................................................................RESPONDENT

JUDGMENT

INTRODUCTION

1. Through a Statement of Claim dated 16th December 2016, the Claimant sued the Respondent seeking for the following reliefs:

a)    A certificate of service.

b)    A declaration that the Claimant is entitled to his terminal dues.

c)    A declaration that the Claimant was under paid.

d)    A declaration that the Claimant’s resignation was necessitated by the Respondent’s thus being unlawful.

e)    A declaration that the Claimant is entitled to gratuity for the period worked.

f)     Costs of this suit.

g)    Any other relief this Honourable Court may deem just and expedient to grant.

h)    Interest on [b], [c], [e] and [f] at Court rate from the time of filing this suit.

2. Upon being served with summons to enter appearance the Respondent did, and filed a Statement of Response dated 10th May 2017, in which he denied the Claimant’s cause of action and his entitlement to the reliefs sought.

3. By leave of the Court granted on the 21st July 2020, the Claimant amended his Statement of claim on the 30th July 2020.  In the Amended Statement of claim, the Claimant brought on board additional reliefs, namely:   A declaration that the Claimant is entitled to accrued annual leave for a period of 5 years being 2003, 2004, 2005, 2006 and 2015; service pay; compensation for public holidays worked; compensation for unpaid overtime; compensation for un-accorded off days; house allowance from January 2003 to March 2007; and interest on the additional reliefs.

The Claimant’s case

4. It was the Claimant’s case as can be discerned from his Pleadings, Witness Statement turned evidence in chief and his oral testimony in Court that he came into the employment of the Respondent as a security officer in January 2003, at a monthly salary of Kshs. 6,000.  He worked as such for about 4 years, without being accorded leave and without compensation in lieu thereof.  He further alleged that during that course of employment, his shift started at 5 p.m. and ended at 8 a.m.

5. He stated that in the year 2007, he became a caretaker in the employment of the Respondent.  He worked in this position until he resigned in the year 2016.  Besides being a caretake he was allocated duties which included gardening, compound cleaning, swimming pool, fresh pond cleaning and maintenance and the management and foreman at the Respondent’s construction site.

6. Between the year 2007 and 2013, the Respondent increased his salary at various dates and amounts.  As at 2013 the salary amount had hit Kshs. 12,000.  Thereafter there was no increment up to the time he resigned.

7. The Claimant contended that due to the nature of his work, his health deteriorated.  Despite the Respondent being aware of this, he did not at all step in to assist.

8. The Claimant alleged that the Respondent did not at any time prior to the year 2013, make any contributions for him to the National Social Security Fund.  He however did between the year 2013 to February 2016 though in an erratic manner.

9. He contended that between January 2003 to March 2007, the Respondent didn’t pay him house allowance or provide for his accommodation.  He further alleged that despite working overtime he was never compensated for the same.

10. The Claimant asserted that due to ill health, he resigned on medical grounds on the 28th February, 2016.  He resigned by giving notice.

11. The Claimant contended that the Respondent did not pay him his service pay upon the resignation. Further that at all material times he was being underpaid. His salary was less than which was stipulated in the relevant Wage Orders.

12. Cross-examined by the Respondent’s Counsel, the Claimant stated that between the year 2003 to 2007 he was working as the Respondent’s watchman, then he was staying at Kayole.  At this time the Respondent was constructing and construction was completed between 2006 and 2007.

13. At the completion of the construction, he became a caretaker and another person was employed as a security guard.  After he became a caretaker, he was accommodated within the Respondent’s premises.

14. As at the time he was leaving employment he was earning Kshs. 12,000.

15. He alleged that between the year 2003 to 2007 he was not at any time accorded leave.  He would ask for the same verbally only for the Respondent to decline to allow him proceed for the same.

16. He wrote a resignation letter to the Respondent and in the resignation letter he thanked him, for the opportunity the latter accorded him and for the relationship.

17. There was an agreement between him and the Respondent allowing the latter to deduct Kshs. 200 [Two Hundred] monthly for remittance to National Health Insurance Fund.

The Respondent’s case

18. At the hearing of his case the Respondent urged the Court to adopt his Witness Statement dated 15/05/2017 as his evidence in chief and the documents that he filed under the list of documents dated 21st June 2017 as his documentary evidence.  The documents were produced as exhibit 1 – 6.

19. The Respondent stated that he employed the Claimant to guard materials at his construction site in the year 2003.  The Claimant worked in the said position until 2006 when the construction was completed.  He then employed him as a labourer to take care of the compound.

20. As a compound labourer, he was housed on site for free, with free water and electricity.  His salary was at all times above the minimum statutory wage and he was paid every month without fail.

21. He contended that in addition to the monthly wages, he was given mobile phone airtime with Kshs. 250 per a month and milk allowance of Kshs. 500 per a month.

22. He stated that the Claimant’s health started deteriorating with time.  He developed health problems.  All through, he extended assistance to the Claimant in the situation.  He would assist him get medical attention and give him money to pay the medical bills.

23. On 12th January 2016, the Claimant wrote a letter, addressed to the Respondent, tendering his resignation from employment.  In the letter he gave a three months’ notice.  He requested to be released from employment to enable him follow up medication as per the doctor’s advice.  The Respondent accepted the resignation.

24. The Claimant appreciated the Respondent for the time of the employer-employee relationship.  The resignation was voluntary and the Claimant was paid all his dues.  He signed for the same.

25. The Respondent contended that he did not make any remittances to the National Health Insurance because he did not at any time deduct his salary for that purpose.

26. As would be seen from the Claimant’s own document, NSSF remittance for the period between 2013 to 2016 was done dutifully.  The Respondent made the remittances with effect 2013 June to the time the Claimant resigned.  He remitted Kshs. 400 every month. The amount being his contribution as the employer, and the Claimant’s contribution on a 50 – 50 ratios.

27. He asserted that the Claimant’s work was in the nature that it would not entail him to work overtime.

28. The Respondent stated that the Claimant resigned so that he would be able to start his own business.

29. Cross examined by the Claimant’s Counsel, the Respondent contended that the Claimant did not work for him as caretaker at day time.

30. That at all material times, the Claimant used to proceed for his annual leave.  Though there was no formal record.

31. The Respondent confirmed that at various times between 2007 to 2013 he kept increasing the Claimant’s salary only to stop doing it as a result of his [Respondent’s] retrenchment.

32. He stated that when the Claimant resigned, he did not give him any other benefit other than his salary. He admitted that between 2003 – 2007 he did not pay him any house allowance.

33. In his evidence under re-examination, the Claimant stated that looking at the NSSF statement, it is clear that he paid a total of Kshs. 4,800, an amount for two years.

34. At the separation, the Claimant was only entitled to a salary for February 2016, not any other benefit.

The Claimant’s Submissions

35. The Claimant filed two sets of written submissions.  The 1st one dated 16th November 2021, and a further one dated 14th December 2021.

36. The Claimant submitted that section 10 and 73 of the Employment Act required an employer to keep records which could include the date of commencement of employment, the form and duration for contract, place of work and hours of work of its employees.

37. It was further submitted that where in proceedings an employer fails to produce such records it will be the employer’s burden to disapprove a term of contract as alleged by an employee.  The Court is invited to note that the Respondent only tendered salary records from 2010 to 2016 as evidence.  He did not place records for the period between 2003 to 2006 and details for leave in 2015.

38. It was further submitted that the Respondent cannot be heard to raise the issue of limitation of time pursuant to the provisions of section 90 of the Employment Act against the Claimant’s Claim, as the same was never pleaded.  Counsel submitted that this position finds support in the decisions in Town Council of Awendo -vs- Nelson Oduor Onyango & 13 others [2013] eKLR and Stephen Onyango Achola and another -vs- Edward Hongo Sale & another NRB CA Civil Appeal No. 209 of 2004 [2004] eKLR.

39. The Claimant submitted that at all material times between the year 2003 to 2015, the Respondent did not pay the Claimant in accordance with the Wage Orders that were relevant.

40. That from the year 2003 – 2012, the Respondent did not remit any money to the National Social Security Fund.  Therefore, he should be awarded Service Pay of Kshs. 113,590.  Counsel for the Claimant put reliance on the case of Joab Ashitiba Kashon -vs- Samaritan Medical Services [2017] eKLR,where Mbaru J. held:

“Section 20 and 21 of the Employment Act, 2007 makes it the duty of the employer to ensure statutory deductions and effect and remit as appropriate.  It was thus the duty of the Respondent as the employer to ensure that the Claimant as the employee, his position notwithstanding that he was compliant with statutory requirements with regard to effecting all statutory deductions for all employees inclusive of himself.  Such deductions and remittance became apparent where an employer is able to issue an itemised pay statement to each individual employee ……………. Therefore, when the employer fails to ensure the deduction and remittance of the statutory dues as appropriate, the provisions of section 35 [5] and [6] became applicable.  The employee whose statutory dues have not been remitted has the benefit of service pay.”

41. On the sought compensation for untaken and unpaid leave for the period 2003 – 2006, the Claimant sought to rely on the decision in Abubakar Ali -vs- Central Electricals International Limited [2019] eKLR where the Court held:

“The Respondent offered no annual leave records to discount the Claimant’s position that he never went on annual leave.  He was not paid in lieu of annual leave.  He is granted the statutory minimum ……… annual leave for 5 years.”

Further that the Claimant’s annual leave was governed by section 10 [1] of Legal Notice No. 24 of the Regulation of Wages [Protective Security Service Order, 1998].  He is therefore entitled to Kshs. 14,440.

42. On the house allowance Claim for that period 2003 – 2006, Counsel for the Claimant submitted that the relevant Wage Order was, Regulation of Wages [Protective Security Services] Order, 1998, the Claimant is entitled to Kshs. 43,200, being the house allowance that was not paid to him during that period.

43. She submitted that pursuant to section 9 [1] and section 8 of Legal Notice No. 24 of the Regulation of Wages [Protective Security Services] Order, 1998, the Claimant is entitled to Kshs. 13,200 and Kshs. 41,600 as public holidays worked but without compensation thereof and the uncompensated for untaken off days, respectively.

44. Submitting on the Claim for overtime compensation for the years 2003 – 2006, the Counsel argued that without the records and schedule of the work hours, it should be taken that the Claimant had 8 overtime work hours each day during the aforestated period.  Cumulative he is entitled to Kshs. 427,885 under this head, overtime.

45. In her further submissions, Counsel argued that the limitation of time is a jurisdictional issue, that ought to have been raised now, since in his pleadings the Respondent admits jurisdiction of this Court.

The Respondent’s submissions

46. The Respondent’s counsel identified two issues for determination in this matter, thus:

(i)Whether the Claimant’s Claim is statute barred in terms of limitation of actions under section 90 of the Employment Act.

(ii)Whether the Claimant is entitled to the remedies sought.

47. He argued that limitation under Employment Law is governed by section 90 of the Employment Act, 2007, which provides:

“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 contract of service in general shall be instituted unless it is 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 cessation thereof.”

The Claimant’s Claim for acts allegedly committed in the years 2003 – 2006, more than 10 years after the cause of action accrued therefore, is for all intents and purposes stale, and is not available for pursuing by dint of the provisions of section 90 of the Employment Act.  It shall be against public policy, and the principle of law, to entertain such a Claim.  To buttress this, counsel placed reliance in the holding of Justice Nyamu in the case of Labsons Limited -vs- Manula Hauliers Limited HCCC No. 204 of 2005 [unreported] thus:

“In the articulation of and enforcement of fundamental principles of law such as res judicata, limitation laches and if I may add to the list, estopped waiver ……….. our Constitution does assume that there are also fundamental principles of law in existence although the Constitution does not occupy the position of the superstructure has a foundation and one of the foundations is the existence of fundamental principles of law.  It is reckless for applications to ignore the fundamental principles of law when filing or articulating constitutional applications.  Many of the identified fundamental principles of law are based on the public policy principles of fairness and justice.”

48. As regard the Claimant’s Submissions on the fact that limitation of time was not pleaded by the Respondent and therefore, he is estopped from raising the same at this point, Counsel for the Respondent argued that there are matters that need not be pleaded, matters that a Court of law can take judicial notice of.  Some of them are those that have been brought out in section 60 [1] [a] of the Evidence Act, which provides:

“60.  Facts which Court shall take judicial notice,

[1] The Court shall take judicial notice of the following facts:

[a] All written laws, and all laws, rules and principles, written or unwritten, having the force for law, whether in force or having such force as aforesaid before, at or after the commencement of this Act, in any part of Kenya.”

49. The Respondent needed not to plead written law as this Court is mandated to take judicial notice of the same.

50. On the second issue, the reliefs if any awardable to the Claimant, Counsel submitted that where an employee pleads and seeks compensation for, underpayment, the yardstick for compensation is the law on minimum wage as at the time claimed.  According to the Respondent’s Counsel, the minimum wages for the period 2007 and 2016, were:

a)  Year 2007 to 2009 [Legal Notice 38 – the Regulation for Wages [General] [Amendment Order 2006] the Minimum Wage was Kshs. 5,796 while the Claimant was earning Kshs. 7000.

b)  Year 2010 [Legal Notice 98 – the Regulation for Wages [General] [Amendment] Orders 2010], the Minimum Wage was Kshs. 6,743 while the Claimant was paid Kshs. 9,750.

c)  Year 2011 [Legal Notice 64 – the Regulation of Wages [General] [Amendment] Orders 2011] the Minimum Wage was kshs. 7,586 while the Claimant was paid Kshs. 10,250.

d)  Year 2012 [Legal Notice 71 – the Regulation of Wages [General] [Amendment] Order 2012] the Minimum Wage was Kshs, 7,586 while the Claimant earned Kshs. 10,750 and Kshs. 12,750.

e)  Year 2013 – 2014 [Legal Notice 197 – the Regulation of Wages [General] [Amendment [Orders 2013] the Minimum Wage was Kshs. 9,780. 95 while the Claimant was being paid Kshs. 12,750.

f)   Year 2015 – 2016 [Legal Notice 117 – the Regulation of Wages [General] [Amendment] Orders 2015] the Minimum Wage was Ksh. 10,954 while the Claimant earned Kshs. 12,750.

It is clear therefore, as the Respondent asserted, during the period of the employment relationship, the Claimant was at all material times paid above the Minimum Wage.

51. As regards the Claimant’s Claim for gratuity/service pay, counsel submitted that the same is provided for under section 35 [5] in form of Social Security payment, afforded to an employee upon termination and is payable when the employee has not been paid within the other Social Security Plans.

52. He argued that from the evidence tendered, it is evident that the Claimant registered for NSSF on the 7th June 2013.  The Respondent commenced payment of the same in the month of June 2013, and remitted the same religiously until the Claimant resigned.

53. He further argued that an employer can only be held accountable where it fails to deduct statutory payment.  It is not expected of an employer to force the employee to get into the scheme.

54. On the Claim for house allowance for the year 2003 – 2006, public holidays for the year 2003 – 2006, weekly rest days for same period and overtime, he submitted that during this period, the Claimant was not an employee of the Respondent, but rather engaged on a need basis and this does not qualify for the stated payments.

55. The Claimant should not be allowed to place reliance on the provision of section 10 and 74 of the Employment Act to buttress his Claim, as the actions complained of occurred under the regime of the Employment Act 226.  The Claimant needed to place reliance on a provision therein that is in content and import equivalent to section 10 and 74 of the Employment Act 2007, if at all it ever existed.

56. On the account that the Respondent has demonstrated that the Claimant was not his employee during the period 2003 – 2006, it will not be reasonable for one to expect a record from him regarding an employment which never existed.

57. The Claimant’s Claim is one that lacks merit, it has not been proven, it is therefore a fit candidate for dismissal.

Analysis and Determination

58. From the pleadings by the parties, their respective evidence and submissions, I distil the following issues for determination in this matter.

a)  Whether the Claimant’s Claim is time barred to any extent.

b)  Whether the Claimant has made a case for a grant of the reliefs sought or any of them.

c)   Who should bear the costs of this Claim?

Whether the Claimant’s Claim is time barred to any extent.

59. The Respondent argued that the Claimant’s Claim is largely time barred as most of it relates to acts that occurred more than 10 years prior to the filing.  The Claimant while admitting that much of what is complained of by the Claimant relates to a period outside the 3 years to the date of filing this Claim, takes a view that limitation cannot be raised too late in the day, when it was not pleaded.

60. Section 90 of the Employment Act provides for limitation in matters arising out of the Act or service of contract.  They must be filed within 3 years of accrual of the cause of action.  In matters where a Claim is found to have been filed out of time such a claim must be dismissed unless there is an exception that extends or tolls a statute of limitation or when there is a continuous wrong committed by the Respondent. This is what is envisaged under section 90 by the provision of the exception, in continuous injury.

61. However, it is imperative to state that the Claimant has not asserted that the doctrine of continuous injury or damage is applicable in the circumstances of his case.

62. I am not persuaded by the position taken by Counsel for the Claimant that the Respondent is debarred from raising the issue of limitation since he did not plead it.  It is for Court to determine the question as to whether the suit is barred by limitation or not, irrespective of the fact whether such plea has been raised by the parties; such a jurisdictional fact need not be pleaded.

63. By no stretch of imagination can it be said that a Court of law can proceed with a Claim that is clearly time barred and consider it in favour of the Claimant.  The question relating to limitation was to the root of a matter.  If not addressed appropriately it may render an order or judgment unlawful.  It can be raised any time by the parties or Court.

64. I am entirely in agreement with the holding by Justice Nyamu in Labsons Limited -vs- Manula Hauliers [supra].  It will be careless of a party to commence a suit that is clearly time barred, and hope that the other party does not raise the issue of limitation of time and attempt to reap fruits out of the default.

65. Even if the Respondent were not to be allowed to raise the issue of limitation of time owing to a default in pleading the same, I would still proceed to take judicial notice of the provision of the law, pursuant to section 60 of the Evidence Act, consider whether or not the Claim is time barred and render myself on the point.

66. By reason of the aforegoing premise, I am persuaded to hold that the Claimant’s Claim as relates to acts that fall outside of the 3 [three] years to the date of filing the claim herein is time barred and is dismissed.

67. The Claim as herein above stated related largely to a period outside the three years immediately prior to the date of filing this suit.  Therefore, the Claimant’s Claim for reliefs sought in respect of the years 2003, 2004, 2005 and 2006 is dismissed.  The reliefs cannot be availed to him.

Whether the Claimant has made a case for a grant of the reliefs sought or any of them.

68. Having found as I have hereinabove in regard to the reliefs sought, connected to the years 2003, 2004, 2005 and 2006, I now turn to consider whether there is any relief that can be granted for the acts complained of related to the year 2015.

69. The Claimant claims for public holidays worked and unpaid overtime.  These are items just thrown to Court.  There is no specificity.  If the Claimant had in mind specific public holidays and or days when he worked overtime, he ought to have issued a notice of production to the Respondent requiring him to produce documents that are related to the specific aspects of his claim as the two hereinabove mentioned.  The whole exercise of pre-trial steps, is to enable a clear picture to parties of what is expected of them in the proceedings thereafter for purposes of adequate preparation for conducting of their respective cases.  It aids conveniency and expediency in the proceedings.

70. I am of the view that there is nothing proved against the Respondent in respect of the year 2015, therefore nothing to award.

71. By reason of the premises aforegoing, the Claimant’s case is found to be lacking in merit.  It is hereby dismissed with costs.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI

THIS 24TH DAY OF MARCH, 2022.

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OCHARO KEBIRA

JUDGE

Delivered in presence of;

Ms Koko for the Claimant.

Mr. Kofuna for the Respondent.

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 1Bof the 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 just, expeditious, proportionate and affordable resolution of civil disputes.

A signed copy will be availed to each party upon payment of Court fees.

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OCHARO KEBIRA

JUDGE