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ELCDismissedMachakos ELRCA No. E008 of 2024· [2026] KEELC 4649 (KLR)

Indako v Securex Agencies (K) Ltd (Employment and Labour Relations Appeal E008 of 2025) [2026] KEELC 4649 (KLR)

Employment and Labour Relations Court
17 July 2026
2,625 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Machakos employment appeal failed because the employee's Facebook posts about a client justified fair dismissal, and unproved overtime claims cannot succeed.

What this practically means

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Executive summary

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The Claimant/Appellant appealed to the Employment and Labour Relations Court at Machakos against the judgment of Hon. D. Kuto (SPM) of 28th January 2025 in Mavoko MCELRC No. 126 of 2019, which had dismissed his claim for unlawful termination. He sought setting aside of that judgment and entry of judgment per his memorandum of claim, which included a declaration that his termination was unlawful, maximum compensation, one month's pay in lieu of notice, damages for wrongful dismissal, service gratuity and overtime. The appeal was canvassed by written submissions. The court framed two issues: whether the termination was lawful and fair, and whether the trial court erred in failing to award the relief sought. Guided by Selle v Associated Motor Boat Co., the court re-evaluated the evidence. It found the appellant admitted posting offensive Facebook content about the client without remorse, failed to respond in disciplinary proceedings, and never returned to work, amounting to insubordination and absenteeism justifying summary dismissal under section 44 of the Employment Act. Both substantive fairness under section 43 and procedural fairness under sections 41 and 45(2) were satisfied, and the trial court's findings were consistent with the appellant's own cross-examination. On relief, notice pay and compensation were not due; gratuity of Kshs.62,000 was found paid; and the overtime claim failed as unproved special damages, the appellant having admitted receiving paid overtime. The appeal was dismissed with no order as to costs, the court tempering justice with mercy, and the file marked closed.

Key legal issues

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01

Whether the termination of employment was lawful and fair

Holding

The termination was both substantively and procedurally fair; the appellant's insubordination, absenteeism and unremorseful Facebook posts justified summary dismissal under section 44 of the Employment Act

Reasoning

The appellant admitted posting offensive Facebook content about the client without remorse, failed to respond in disciplinary proceedings, and never returned to work after the postings. The reasons for termination existed under section 43, and the process passed the fairness test under sections 41 and 45(2), covering both substantive and procedural fairness. The trial court's findings were supported by documents and consistent with the appellant's cross-examination, so no basis existed to interfere.

p. 10
02

Whether the trial court erred in failing to award the relief sought (overtime, gratuity, notice pay and compensation)

Holding

The appeal on relief failed: notice pay and compensation were not due given lawful termination; gratuity was paid; the overtime claim was not strictly proved

Reasoning

Having upheld lawful and fair termination, notice payment and compensation were not payable. The appellant admitted in cross-examination that the payslip showed and that he was paid overtime, and he bore the burden of proving extra hours beyond that; he made no claim during employment. Gratuity of Kshs.62,000 was conceded as paid and the issue was not pursued on appeal.

p. 11

Legal principles established

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  • Burden of proving unfair termination rests on the employee, while the burden of justifying the grounds for termination rests on the employer (section 47(5) Employment Act)
  • Overtime is special damages and must be proved strictly
  • A first appellate court must reconsider and evaluate the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses

Court orders

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  1. 1.The appeal is dismissed
  2. 2.No order as to costs
  3. 3.The file is marked as closed
On appeal from
Magistrates Court (Mavoko)
Mavoko MCELRC No. 126 of 2019
Jurisdiction invoked
First appellate jurisdiction over appeal from Mavoko MCELRC No. 126 of 2019 (Employment and Labour Relations Court Act)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Indako v Securex Agencies (K) Ltd (Employment and Labour Relations Appeal E008 of 2025) [2026] KEELC 4649 (KLR)", Case Analysis (2026). Machakos ELRCA No. E008 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4649/eng@2026-07-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.