G4s Security Services (K) Ltd v Ongori (Civil Appeal E127 of 2022) [2025] KECA 1950 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that employees can claim pay for all unpaid leave accrued over their entire employment, calculated on their final salary.
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 respondent’s claim for accrued leave days constituted a continuous injury claim
- 2.the appropriate salary to be used to compute the claim for leave allowance
Key legal issues
#Whether accrued unpaid leave days constitute a continuing injury under Section 90 of the Employment Act
Yes. Because leave is a mandatory statutory entitlement, failure to grant it each year constitutes a continuing wrong that ceases only upon termination; the suit filed on 20th June 2018, within twelve months of the 8th November 2017 termination, was in time.
The Court traced the doctrine through its own decisions (Mary Kitsao Ngowa, G4S Security Services vs. Joseph Kamau, The German School Society vs. Ohany) and comparative Indian and US jurisprudence, distinguishing a completed wrongful act from a continuing breach of a continuing duty. Leave under Section 28 of the Employment Act is couched in mandatory terms, and the employment contract contained no proviso restricting leave entitlement. A claimant cannot be expected to sue annually in a continuing course of conduct.
Whether a limitation defence under Section 90 can be raised for the first time on appeal
No. The appellant did not plead statutory limitation as a defence before the trial court and could not raise it for the first time on appeal.
The Court held it unprocedural to introduce the Section 90 limitation point at submission/appellate stage. This aligns with the respondent's reliance on the principle that issues not raised in pleadings or at trial cannot be entertained on appeal.
The appropriate salary figure for computing leave allowance
Basic pay at the time of exit (Kshs. 14,421) is the correct basis; the trial court's use of Kshs. 10,094.70 was arithmetically correct, being 14,421 x 21 ÷ 30, with only the failure to explain the derivation being an error.
The Court re-appraised the payslips for July–September 2017, observed that leave is paid at basic salary, and found the trial court's calculation sound in substance. The respondent's complaint was misconceived since the figure used was derived from the last basic pay.
Legal principles established
#- Failure by an employer to grant an employee his statutory right to leave with full pay for each year of service constitutes a continuing wrong or injury under Section 90 of the Employment Act, and the limitation period runs for twelve months from cessation (termination of employment), not three years from each annual accrual.
- A statutory limitation defence under Section 90 of the Employment Act cannot be raised for the first time on appeal where it was not pleaded before the trial court.
- Where a continuing injury persists until termination, the proper remuneration for computing payment in lieu of accrued leave is the employee's basic pay at the time of exit.
Court orders
#- 1.Upheld the judgment of the Employment and Labour Relations Court at Mombasa (Nzei, J.) dated 28th April 2022
- 2.Dismissed the appeal with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court, Mombasa
- Cause No. 429 of 2018
- Jurisdiction invoked
- First appellate jurisdiction under rule 31(1)(a) of the Court of Appeal Rules, 2022 (re-appraisal of evidence on a first appeal)
Relief refused
#Setting aside the award of Kshs. 181,704.60 for 18 years' leave pay and substitution with Kshs. 43,263 for 3 years' leave pay
The claim for accrued unpaid leave constituted a continuing injury under Section 90 of the Employment Act; the appellant also raised limitation for the first time on appeal without having pleaded it
Costs
The appeal was dismissed with costs to the respondent.
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.
The very essence of a continuing injury is that the enforcement of the claim is not a one-time ofi action, but that, it is such that the events giving rise to the injury linger over long periods of time, and the clock in time does not freeze since it would be unreasonable to expect the claimant to sue at an early stage in a continuing course of conduct.
entitlement to leave is sacrosanct, and by dint of its statutory backing, failure to grant an employee his right to leave for each year of service certainly constitutes a continuing wrong or injury.
the appellant did not plead the statutory limitation under Section 90 as a defence, and is raising it for the first time on appeal, which is unprocedural.
we find that the proper remuneration to be applied was the respondent’s basic pay at the time of exit.
Accordingly, we uphold the Judgment of the Employment and Labour Relations Court (ELRC) in Mombasa (Nzei, J.) dated and delivered on 28th April 2022. Consequently, the appeal herein is unmeritorious and is hereby dismissed with costs to the respondent.
Issues in the judgment
#The Memorandum of Appeal is dated '24th November 2002' which is inconsistent with the appeal timeline (judgment appealed against was delivered in April 2022); this appears to be a typographical error in the judgment.
The prayer paragraph describes the award as '8 years’ leave pay' whereas the challenged award was for 18 years' leave pay of Kshs. 181,704.60, an apparent internal inconsistency.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "G4s Security Services (K) Ltd v Ongori (Civil Appeal E127 of 2022) [2025] KECA 1950 (KLR)", Case Analysis (2025). Court of Appeal, Mombasa – Appeal from Mombasa ELRC Cause No. 429 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1950/eng@2025-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.