Securkenya Group Limited v Wesiko (Employment and Labour Relations Appeal E021 of 2023) [2025] KEELRC 1031 (KLR)
The bottom line
#A Kenyan court upheld an unfair dismissal claim but cut compensation in half, ruling that a signed final dues disclaimer waived overtime and house allowance claims.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was procedurally fair under section 41 of the Employment Act
The termination was procedurally flawed: the claimant was given a show cause letter without notice of hearing, heard within hours without a companion of choice, and denied attending.
Section 41 obliges an employer, before terminating on grounds of misconduct, to explain the reasons in a language the employee understands, allow a fellow employee or shop floor union representative, and hear representations. The show cause letter carried no hearing date, the minutes did not show the claimant requested an immediate hearing, and RW1 who claimed an immediate hearing was requested did not attend the hearing. The trial court's finding of a flawed procedure was upheld.
Whether there was a valid reason for the termination
No valid reason was established; the disciplinary verdict was conditional and the termination letter cited no misconduct.
The disciplinary committee's verdict gave the employee two options contingent on a repetition of the negative attitude. The termination letter of 7th December 2020 did not disclose reasons nor refer to the disciplinary hearing, and there was no evidence of a repeated offence between the hearing and the termination. The court therefore upheld the finding of unlawful and unfair termination.
Whether the signed disclaimer on final dues barred the claims for house allowance and overtime
Yes; the disclaimer was willingly executed and waived claims for terminal dues including house allowance and overtime.
The claimant signed the disclaimer and was paid; duress was never pleaded and the claimant was found to be well exposed with good command of English. Following Trinity Prime Investment and Coastal Bottlers, execution of the discharge voucher constituted a complete contract. The awards of housing and overtime were set aside as terminal dues covered by the waiver.
Whether the maximum compensation of 12 months' salary was deserved
No; the court substituted 6 months' salary (Kshs. 150,000) as compensation.
In exercise of the section 49 discretion, the court took into account the claimant's short service of two years, evidence of previous misconduct, payment of salary, leave and notice, and the availability of a certificate of service enabling him to secure other employment. The maximum award was found undeserved and reduced to the equivalent of six months' salary.
Legal principles established
#- A discharge voucher or signed disclaimer on final dues constitutes a complete contract binding the employee and waiving further claims for terminal dues absent proof of duress or misrepresentation.
- A signed disclaimer on final dues does not cover compensation for unfair termination payable under section 49 of the Employment Act.
Court orders
#- 1.The judgment of the Honourable H. Mwangi Ng'ang'a (PM) delivered on 23rd February 2023 in Nairobi MCELRC E698 of 2021 is set aside and substituted.
- 2.A declaration that the termination of the claimant's employment by the respondent was unlawful and unfair.
- 3.Compensation for unfair termination equivalent of 6 months' salary of Kshs. 150,000.
- 4.Costs and interest from the date of judgment until payment in full.
- 5.Each party is to bear its costs at the appeal.
- On appeal from
- Employment and Labour Relations Court (Magistrates' Court)
- Nairobi MCELRC E698 of 2021
- Jurisdiction invoked
- First appellate jurisdiction of the Employment and Labour Relations Court over appeals from the ELRC subordinate court (Magistrates' Court) under the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Securkenya Group Limited v Wesiko (Employment and Labour Relations Appeal E021 of 2023) [2025] KEELRC 1031 (KLR)", Case Analysis (2025). Nairobi ELRC Appeal E069 of 2023 (Nairobi MCELRC E698 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1031/eng@2025-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.