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ELRCPartially AllowedNairobi ELRC Appeal E069 of 2023 (Nairobi MCELRC E698 of 2021)· [2025] KEELRC 1031 (KLR)

Securkenya Group Limited v Wesiko (Employment and Labour Relations Appeal E021 of 2023) [2025] KEELRC 1031 (KLR)

Employment and Labour Relations Court
28 March 2025
5,723 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The appellant, Securekenya Group Ltd, appealed against the judgment of H. Mwangi Ng'ang'a (PM) of 23rd February 2023 in Nairobi MCELRC E698 of 2021, which had found that the claimant (respondent) was unlawfully and unfairly terminated and awarded him Kshs. 839,280, comprising 12 months' salary as compensation (Kshs. 300,000), unpaid house allowance, and overtime (Kshs. 449,280), with costs. The appeal was canvassed by written submissions. The court, as a first appellate court, re-evaluated the evidence applying the principles in Selle v Associated Motor Boat Co. Ltd and Mbogo v Shah. On the termination, it found the claimant was issued a show cause letter without notice of a hearing, was heard within hours without the right to be accompanied, and that the disciplinary verdict was conditional on a repetition of misconduct which was never demonstrated; the termination letter of 7th December 2020 cited no reasons. It upheld the finding of unlawful and unfair termination. On reliefs, the court held that the signed disclaimer on final dues, which it found was willingly executed and unchallenged by a plea of duress, waived claims for terminal dues; it set aside the awards of house allowance and overtime, finding no proof of those claims. However, it held the disclaimer did not cover compensation for unfair termination under section 49 of the Employment Act. Considering the claimant's two years of service, evidence of previous misconduct, and payment of notice and dues, it reduced compensation from 12 months' to 6 months' salary (Kshs. 150,000). The appeal was partially successful: the trial judgment was set aside and substituted with a declaration of unlawful and unfair termination, 6 months' compensation, and costs and interest from the date of judgment; each party to bear its own costs of the appeal.

Key legal issues

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01

Whether the termination was procedurally fair under section 41 of the Employment Act

Holding

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.

Reasoning

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.

p. 7
02

Whether there was a valid reason for the termination

Holding

No valid reason was established; the disciplinary verdict was conditional and the termination letter cited no misconduct.

Reasoning

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.

p. 8
03

Whether the signed disclaimer on final dues barred the claims for house allowance and overtime

Holding

Yes; the disclaimer was willingly executed and waived claims for terminal dues including house allowance and overtime.

Reasoning

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.

p. 9
04

Whether the maximum compensation of 12 months' salary was deserved

Holding

No; the court substituted 6 months' salary (Kshs. 150,000) as compensation.

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 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. 2.A declaration that the termination of the claimant's employment by the respondent was unlawful and unfair.
  3. 3.Compensation for unfair termination equivalent of 6 months' salary of Kshs. 150,000.
  4. 4.Costs and interest from the date of judgment until payment in full.
  5. 5.Each party is to bear its costs at the appeal.

Authorities

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Legislation

  • Employment Actsection 45(1) and (2)
  • Employment Actsection 41(1) and (2)
  • Employment Actsection 44(3)
  • Employment Actsection 42(1)
  • Employment Actsection 49

Cases cited (17)

  • Selle v Associated Motor Boat Co. Ltd
    [1968] EA 123
  • Mbogo v Shah
    [1968] EA
  • Central Bank of Kenya vs. Julius Nkonge
    [2002] eKLR
  • CMC Aviation Limited vs. Mohammed Noor
    [2015] eKLR
  • Walter Ogal Anuro Vs Teachers Service Commission
    (2013) eKLR
  • Janet Nyandiko Versus Kenya Commercial Bank Limited
    [2017] eKLR
  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
  • Coastal Bottlers Limited v Kimathi Mithika
    [2018] KECA 523 (KLR)
  • Trinity Prime Investment Limited vs. Lion of Kenya Insurance Company Limited
    [2015] eKLR
  • Damondar Jihabhai & Co Ltd and another vs. Eustace Sisal Estates Ltd
    [1967] EA 153
  • Globe Motors Inc & Others vs TRW Lucas Electric Steering Ltd & Others
  • Fredrick Odhiambo Versus Kenya Safari Lodges & Hotels Ltd
    E & LRC CAUSE NO. 82 OF 2015
  • Muthaiga county club vs Simon Wachira Muhuro
    (2009)eKLR
  • Thomas De La Rue (K) Ltd vs David Opondo Omutelema
    (2013)eKLR
  • Krystalline Salt Limited v Kwekwe Mwakele & 67 others
    [2017] eKLR
  • Kioko Muindi versus United Aryan (Epz) Limited
    Nairobi Cause No. 239 of 2017
  • H. Young & Co (E. Africa) Ltd Versus John Mwaniki Mwangi and Another
    Nairobi ELRC Appeal E049 & E050 of 2021 (Consolidated)
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

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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, "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.