Alsaidco Alarm Ltd v Njeru (Civil Appeal 256 of 2017) [2023] KECA 1127 (KLR)
The bottom line
#Kenya's Court of Appeal upheld most of a security guard's terminal dues award but cut service pay because she was an NSSF member.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal should be struck out for omission of the requisite bundle of documents from the record of appeal
- 2.Whether the respondent proved her claim for terminal dues to the required standard
- 3.Whether the respondent was entitled to house allowance, overtime, payment for public holidays worked, payment in lieu of annual leave, uniform refund, service pay and gratuity under the Regulation of Wages (Protective Security Services) Order, 1998
Key legal issues
#Competency of the appeal for omission of the requisite bundle of documents
The appeal was competent; omissions can be cured by a supplementary record and no formal striking-out application had been made.
The court noted no formal application to strike out was made and no elaboration of the deficiency was given. Relying on Peter Obwogo and Intercounties Importers, it held that an omission such as a certified decree can be cured by a supplementary record, which occasions no prejudice compensable by costs. Striking out would not facilitate just, expeditious and proportionate resolution.
Whether the respondent proved her claim for terminal dues
Yes, as regards most heads of claim, because the appellant called no evidence and did not controvert the claims, and the burden of proving terms of employment lay on the employer absent a written contract.
The respondent testified and called a witness; the appellant called no witness and made bare denials, retracting its denial of employment in court. Section 10(7) of the Employment Act placed the burden of proving or disproving terms of employment on the employer for failure to produce a written contract. Untested claims for house allowance, overtime, public holidays, leave and uniform refund were therefore allowed.
Entitlement to service pay
The respondent was not entitled to service pay because she was a member of the NSSF; the ELRC Judge erred in awarding it.
Section 35(6) of the Employment Act expressly excludes the application of section 35 where the employee is a member of the National Social Security Fund. The respondent produced her NSSF card as proof of employment. Accordingly, the award of service pay could not stand and was removed from the decretal sum.
Entitlement to gratuity
No gratuity was payable because the respondent resigned for reasons other than certified ill-health or retirement.
Regulation 17(2) of the Order denies gratuity to an employee who terminates services for any reason other than certified ill-health or retirement age. Ill-health must be certified by an independent qualified medical practitioner, and the respondent adduced no such evidence, only an assertion of fatigue in her resignation notice.
Refund of uniform deposit
The award of Kshs 1,200 uniform refund was proper; employers must provide uniform at their own cost.
Regulation 21 of the Order mandates employers to provide uniform and for the employee to return it on termination. The claim was uncontroverted. The court endorsed the ELRC's statement in Peter Kimeu Mose that requiring an employee to buy their own uniform amounts to an unfair labour practice which cannot be cured by acquiescence.
Legal principles established
#- An employer who fails to produce a written contract or written particulars bears the burden of proving or disproving an alleged term of employment
- Where an employee is a member of the NSSF, the employer is not liable for service pay under section 35 of the Employment Act
- Omission of a certified decree or documents from a record of appeal can be cured by a supplementary record and does not justify striking out the appeal
- Under Regulation 17 of the Regulation of Wages (Protective Security Services) Order, an employee who resigns for reasons other than certified ill-health or retirement is not entitled to gratuity
Court orders
#- 1.Appeal partly succeeds; the judgment of the ELRC is varied by removing the award of service pay
- 2.Respondent entitled to payment of Kshs 388,312.60 (Kshs 406,812.60 less Kshs 18,500.00 already received)
- 3.The amount due is payable with interest at court rates from the date of filing suit until payment in full
- 4.Each party shall bear their own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court
- Jurisdiction invoked
- First appeal to the Court of Appeal from a decision of the Employment and Labour Relations Court exercising appellate jurisdiction (Court of Appeal Rules, 2010)
Relief refused
#Service pay of Kshs 21,871.50
Section 35(6) of the Employment Act excludes entitlement to service pay where the employee is a member of the NSSF, and the respondent was an NSSF member
Gratuity on grounds of ill-health resignation
Regulation 17(2) of the Order denies gratuity to an employee who terminates services for reasons other than certified ill-health or retirement; no certified ill-health was proved
Striking out of the appeal for omission of documents
No formal application was made and any omission can be cured by a supplementary record without prejudice
Costs
Each party shall bear their own costs of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
From the totality of the evidence, the appeal partly succeeds.
The amount due is payable with interest at court rates from date of filing suit until payment in full.
Each party shall bear their own costs of the appeal.
If in any legal proceedings an employer fails to produce a written contract or the written particulars prescribed in subsection (1) the burden of proving or disproving an alleged term of employment stipulated in the contract shall be on the employer.
In the circumstances, we find that the respondent was not entitled to service pay as claimed. With respect, we find that learned Judge erred in awarding service pay.
The omission to include a certified decree can be cured by the filing of a supplementary record which act will not occasion any undue prejudice to the respondents.
Issues in the judgment
#Paragraph numbering in the judgment is inconsistent: the number 35 appears three times and 34 twice in the determination section, with passages on gratuity, NSSF/service pay and uniform refund all numbered out of sequence.
The claimed total is inconsistently stated: the plaint table totals Kshs 571,064.10 before deductions yet the narrative records the claim as Kshs 552,564.10, and the ELRC award is described as Kshs 410,184.00 while also being described as the total of Kshs 552,564.10 excluding travel allowance.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Total Security Surveillance Limited v Wekesa (Appeal E146 of 2024) [2025] KEELRC 1930 (KLR)[2025] KEELRC 1930 (KLR)30 Jun 2025followed
- Kamundia v National Cement Company Limited (Cause E070 of 2021) [2025] KEELRC 1927 (KLR)[2025] KEELRC 1927 (KLR)30 Jun 2025applied
Cite this brief
#Cite this brief
Caselaw, "Alsaidco Alarm Ltd v Njeru (Civil Appeal 256 of 2017) [2023] KECA 1127 (KLR)", Case Analysis (2023). Court of Appeal at Nairobi (appeal against the judgment of the Employment and Labour Relations Court, Nduma Nderi, J). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1127/eng@2023-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.