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ELRCPartially AllowedKisumu ELRC Appeal (CMELRC No. E91 of 2021)· [2025] KEELRC 1044 (KLR)

Riley Falcon Security Services v Wafula (Appeal E001 of 2024) [2025] KEELRC 1044 (KLR)

Employment and Labour Relations Court
31 March 2025
2,887 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court cut a security guard's award sharply, ruling his signed contract blocked overtime claims and limiting underpayment recovery to three years.

What this practically means

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Executive summary

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This is a first appeal by Riley Falcon Security Services Ltd against the judgment of Hon. S. Cheruiyot S.P.M dated 26th July 2023 in Kisumu CMELRC No. E91 of 2021, in which the trial court awarded the respondent, a former security guard, Kshs.79,901.60 for overtime and Kshs.279,638.80 for underpayment with costs and interest, having found that he had voluntarily resigned and failed to prove constructive dismissal. The appellant advanced six grounds condensed into three: the relief awarded and limitation, burden of proof, and non-consideration of submissions. The court, applying the Selle principles governing first appeals, found that the ground on non-consideration of submissions had no merit. On burden of proof, the respondent's testimony that he was a night watchman earning Kshs.13,500 (rising to Kshs.15,000) was uncontroverted, and the statutory minimum wage showed he was underpaid throughout employment. However, recovery was limited to the 36 months preceding separation under Section 89 of the Employment Act, and the court substituted the underpayment award with Kshs.110,198.87, being unable to ascertain how the trial figure was computed. On overtime, clause 8.1 of the signed 2020 employment contract expressly consolidated overtime pay in the salary for a 12-hour shift; the respondent never contested it, and at common law signature prima facie means acceptance. The trial court failed to consider that clause, so the overtime award was set aside. The appeal was partially successful: overtime award set aside, underpayment varied to Kshs.110,198.87, the respondent awarded 50% costs in the trial court, and each party to bear its own costs of the appeal.

Key legal issues

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01

Effect of a signed employment contract consolidating overtime in salary

Holding

The respondent, having signed the 2020 employment contract containing clause 8.1 without contest, was bound by it and the overtime claim failed

Reasoning

Clause 8.1 expressly consolidated overtime pay in the salary based on a 12-hour shift. The respondent signed on 29th January 2020 and never faulted the clause during employment. Common law binds a signatory absent vitiation. The trial court awarded overtime without considering clause 8.1 or explaining its inapplicability, justifying appellate interference.

p. 6
02

Limitation of underpayment claims

Holding

Underpayment recoverable only for 36 months preceding separation under Section 89 of the Employment Act

Reasoning

Although the respondent was underpaid throughout employment, the continuing-injury argument did not extend recovery because he applied for and signed a fresh annual contract each year with no carry-over of dues. The court recalculated the recoverable underpayment for 36 months at Kshs.110,198.87 in place of the trial court's unexplained figure.

p. 4
03

Burden and standard of proof on first appeal

Holding

He who alleges must prove; the standard in civil cases is preponderance of probability, and the appellant failed to discharge its burden of showing the suit ought to have been dismissed

Reasoning

Sections 107 and 108 of the Evidence Act place the burden on the party asserting facts. The respondent's testimony on night-watchman duties and salary was uncontroverted, payslips corroborated the alleged salary, and the appellant produced no contrary evidence. The trial court was not faulted for disregarding evidence other than the employment contract.

p. 4
04

Interference with trial court's quantum

Holding

The underpayment award of Kshs.279,638.80 was set aside as the basis for the figure was unascertainable

Reasoning

The court could not determine how the trial magistrate arrived at Kshs.279,638.80 or whether the 2020 salary increase was factored in. Applying the principle that an appellate court may interfere where the trial court acted on wrong principles, the award was substituted with a recalculated sum of Kshs.110,198.87.

p. 4
05

Non-consideration of submissions ground

Holding

The ground failed as the trial magistrate addressed constructive dismissal and voluntary resignation, the very issues in the appellant's submissions

Reasoning

The trial court found the respondent had not proved constructive dismissal and had voluntarily resigned - the issues covered in the appellant's written submissions dated 24th January 2023. The ground lacked embellishment and nothing turned on it.

p. 3

Legal principles established

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  • A party who signs a written contract is bound by its terms unless the signature is vitiated by mistake, misrepresentation, duress or undue influence
  • An appellate court may interfere with a trial court's award where it acted on wrong principles or took into account a factor it ought not to have
  • On a first appeal the court reconsiders and evaluates the evidence afresh while making due allowance for not having seen or heard the witnesses

Court orders

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  1. 1.The award of Kshs.79,901.60 as overtime is set aside
  2. 2.The award of Kshs.279,638.80 as underpayment is set aside and in its place an award of Kshs.110,198.87
  3. 3.The respondent is awarded 50% costs in the trial court
  4. 4.Parties shall bear their own costs of the appeal
On appeal from
Chief Magistrate's Court (ELRC), Kisumu
CMELRC No. E91 of 2021
Jurisdiction invoked
First appeal to the ELRC from the subordinate court (matters of fact and law) under the Employment and Labour Relations Court Act / Civil Procedure framework; Article 159(2)(d) and Article 48 of the Constitution invoked on virtual delivery

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, "Riley Falcon Security Services v Wafula (Appeal E001 of 2024) [2025] KEELRC 1044 (KLR)", Case Analysis (2025). Kisumu ELRC Appeal (CMELRC No. E91 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1044/eng@2025-03-31

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