Mombasa & 2 others v Nyanumba (Appeal E013, E023, E022, E024, E028, E027, E026 & E025 of 2024 (Consolidated)) [2024] KEELRC 2084 (KLR)
The bottom line
#The Employment Court in Mombasa largely cancelled a Ksh.9.4 million award against SGA Security, finding no unfair termination, no redundancy, and time-barred overtime, though guards kept a gratuity right.
What this practically means
#Executive summary
#Key legal issues
#Whether the appeal grounds on the right to be heard are res judicata
Grounds (1), (2), (20), (21) and (23) are res judicata, having been addressed in the dismissed appeals ELRCA No.E067 and E069 of 2021
The appellants had already litigated the complaint that they were locked out from testifying and filing submissions in two prior appeals, both dismissed. Section 7 of the Civil Procedure Act bars re-litigation of matters directly and substantially in issue between the same parties. Reverting the suit for hearing de novo would give the appellants a second bite at the cherry.
Whether the offer of conditional reinstatement upon appeal amounted to constructive dismissal
No constructive dismissal; the respondents rejected the appeal conditions and did not resign, and no demotion or pay cut was proved
Constructive dismissal requires the employee to resign because the employer's conduct made conditions intolerable. Here the summary dismissal was complete on 10 February 2020; on appeal the appellants offered reinstatement, which the respondents rejected by insisting on their former position. Terminal dues including notice pay were paid and not challenged. Conditional reinstatement is not a demotion or pay cut.
Whether the trial court erred in presuming redundancy
The trial court erred; there was no redundancy and the awards of severance pay, notice pay and 6 months' compensation are removed
Redundancy cannot be inferred by the court where no party pleaded or evidenced it. Employment terminated for a justified reason following a properly conducted disciplinary process under Sections 41, 43 and 45 of the Employment Act. The summary dismissal was complete and the respondents rejected the appeal conditions, resulting in termination of employment.
Whether the lump-sum overtime award was justified
The cumulative award of Ksh.7,152,838.95 failed to factor in Section 90 limitation periods; the appeal succeeds on this ground
Payment records filed by the respondents themselves showed overtime was paid when due. Overtime is earned per employee and cannot be a general claim. Claims relating to periods before three years from the suit filed on 11 November 2020 were time-barred, the continuing-injury exception in Section 90 permitting only claims within twelve months of cessation of the injury.
Whether the respondents were entitled to gratuity under the cross-appeal
Yes - gratuity is regulated by the Regulation of Wages (Protective Security Services) Order and the respondents are awarded Ksh.147,184.61
The Minister has published the Regulation of Wages (Protective Security Services) Order which applies to the security services sector in which the respondents, as guards, were employed. Mere denials based on NSSF and NHIF registration do not defeat the claim. Where the Wage Order is not interfaced with the contract, the employees do not lose the right.
Legal principles established
#- An employee offered reinstatement on conditions after a successful appeal from summary dismissal cannot demand to be taken back on his former position; the employer retains the prerogative to reorganise its operations.
- Constructive dismissal must start with an action by the employee - a resignation necessitated by the employer's conduct placing the employee under intolerable conditions.
- Redundancy cannot be inferred by the court where no party pleaded or proved it.
- Overtime is earned per employee and cannot be a general claim; awards must respect the limitation periods in Section 90 of the Employment Act.
- Statutory Wage Orders such as the Regulation of Wages (Protective Security Services) Order apply to the security sector and entitle guards to gratuity even where not interfaced with the employment contract.
- The doctrine of res judicata applies to appeals, barring re-litigation of issues already heard and decided.
Court orders
#- 1.The appeal is allowed; severance pay, compensation for unfair termination and notice pay awarded by the trial court are removed from the respondents
- 2.The overtime award of Ksh.7,152,838.95 is set aside as it failed to factor in the time limitations under Section 90 of the Employment Act
- 3.Judgment of the lower court in Mombasa CMELRC E134 of 2020 is set aside save for the orders in the cross-appeal
- 4.The cross-appeal is partially successful: the judgment in CMELRC No.E134 of 2020 is reviewed and the respondents awarded gratuity pay of Ksh.147,184.61
- 5.Costs are awarded only to the cross-appellants (the respondents); no costs are due to the appellants for the appeal
- 6.The orders apply to all the consolidated appeals
- On appeal from
- Employment and Labour Relations Court at Mombasa (magistrates' court)
- CMELRC No.134 of 2020 (consolidating CMELRC Nos. 81, 86, 135, 192, 193, 194, 195 and 196 of 2020)
- Jurisdiction invoked
- First appellate jurisdiction under the Employment and Labour Relations Court Act over appeals from the ELRC subordinate court (Employment and Labour Relations Court (Procedure) Rules, 2016, Rule 29 invoked on costs)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mombasa & 2 others v Nyanumba (Appeal E013, E023, E022, E024, E028, E027, E026 & E025 of 2024 (Consolidated)) [2024] KEELRC 2084 (KLR)", Case Analysis (2024). ELRCA E013 of 2024 (consolidating ELRCA Nos. E021, E022, E023, E024, E025, E026, E027 and E028 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2084/eng@2024-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.