Court Rulings on Salary Underpayment Disputes Between Employer and Employee

In two separate rulings, the courts have upheld that the burden of proof in disputes of salary underpayments lies with the employer.

Case 1

As noted in a ruling issued on September 15, 2025, Justice Bernard Manani ruled that an employer is obligated under the Employment Act of 2025 to furnish their employee with an itemized payslip showing the gross salary payable to the employee and the statutory deductions made.

The judge added that a payslip is crucial evidence that can be used in disputes of salary underpayment.

In the specific case, Michael Njogu, a site engineer, had sued his former employer, Concordia Building & Civil Engineering Co Ltd, claiming underpayment. According to the employee, he was to receive a monthly salary of Ksh120,000.

However, for three months, from January 2020 until May 2020, Njogu told the court that he was paid Ksh103,000, Ksh17,000 less per month.

In response, the engineering company denied the allegations, stating that the employee was fully remunerated.

"By virtue of sections 10 (6) and 74 of the Employment Act, the employer bears the obligation of maintaining these records. As such, it was the Respondent’s responsibility to keep and place before the court evidence to demonstrate that it paid the claimant the amount claimed," read the court ruling in part.

"As the record shows, it (the Respondent) did not. As such, the court enters judgment in favour of the Claimant for Ksh. 85,000.00 being salary unlawfully withheld by the Respondent."

Case 2

In 2021, the Court of Appeal ruled that an employer's failure to maintain proper employment records is a critical factor in salary underpayment disputes. The ruling was issued in a case between Lilian Mutune, a former shop assistant, and her former employer, Jackson Muiruri Wathingo of Murtown Supermarket.

Mutune claimed she was a full-time employee from August 2010 to November 2013 and was underpaid, receiving a monthly salary of Ksh4,000. On the other hand, the employer argued that she was a casual worker engaged on a 'need be' basis, earning about Ksh500 per day.

The bench, made up of Justice Martha Koome (now the Chief Justice), Mohamed Warsame, and Patrick Kiage, noted that the employer failed to provide any written particulars or records of Mutune's employment, which is a legal requirement under Section 10(7) of the Employment Act. This failure placed the burden of proof on the employer to disprove the employee's claims.

The appellate court upheld a lower court's decision, finding that despite the employer's claims, the duration of Mutune's employment meant she was not a casual employee. The court used the applicable minimum wage from the Regulation of Wages (General) (Amendment) Orders of 2011, 2012, and 2013 to recalculate her dues.

"The appellant, as well as his wife, in their evidence stated that they did not keep any employment records. Their position was that the respondent was a casual employee, while the respondent argued that she was not. In this regard, the learned Judge correctly appreciated that by virtue of Section 10(7) of the Employment Act the appellant was under a duty as the employer to produce written particulars of the respondent’s employment."

"His failure to do so placed the burden of proof upon him to establish his contention as well as disprove the respondent’s allegation," read the ruling in part.