Walumoli v Securex Agencies (K) Limited (Employment and Labour Relations Appeal E142 of 2023) [2025] KEELRC 1341 (KLR)
The bottom line
#A Kenyan court ruled the dismissal unfair because the employee got no hearing and the employer's own records proved he returned to work after the alleged absconding.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was substantively and procedurally fair
The termination was unfair both for lack of procedural fairness (no hearing and no proof of service of the show cause or dismissal letter) and because the reason (absconding) was invalid given the employer's admission that it computed salary for September and October 2020, proving the claimant returned to work
The court found no contest that there was no hearing before termination and no evidence of service of the termination letter. RW's admission during cross-examination that the respondent computed salary for September and 5 days of October corroborated the claimant's evidence that he returned to work, defeating the absconding defence. The trial court erred by not making a finding on that admission, and the burden shifted to the respondent under section 47(5) of the Employment Act.
Whether the claimant was entitled to compensation for unfair termination
Compensation of 10 months' salary (Kshs. 266,880) awarded under section 49 of the Employment Act, taking into account the claimant's conduct of staying away on change of shift without permission and his long service from 2009 to 2020
With unfair termination established, section 49 compensation was appropriate. The court reduced what would otherwise be 12 months to 10 months, weighing the claimant's own conduct of absenting himself without permission against his long service of over 11 years.
Whether the claimant was entitled to overtime
Overtime claim failed because payslips showed a constant Monthly OT item that was not disputed by the claimant
The respondent's witness testified overtime was reflected in the payslips. The court noted a constant Monthly OT item alongside basic salary and housing allowance, and on a balance of probabilities found it to be overtime payment, which the claimant never disputed.
Whether the claimant was entitled to service pay
Service pay was not payable as the payslips showed NSSF deductions and the employer was enrolled under NSSF; any dispute on remittance should be taken up with NSSF
The trial court's conclusion that there was no evidence of NSSF remittance was erroneous, as the payslips evidenced NSSF deductions. The claimant produced no NSSF evidence to dispute the deductions. Under section 35(6) of the Employment Act, service pay is not payable to an employee enrolled under NSSF.
Legal principles established
#- Where the employer's own witness admits having computed salary for months the employee allegedly absconded, that admission defeats the defence of absconding and proves the employee was at work
- Where service pay is concerned, deduction of NSSF contributions evidenced in payslips disentitles an employee to service pay under section 35(6) of the Employment Act
Court orders
#- 1.Declaration that the Appellant suffered unfair wrongful and unlawful dismissal from employment
- 2.One month's salary in lieu of notice of Kshs. 26,688.00
- 3.Salary for the month of September 2020 and 5 days in October 2020 of Kshs. 31,820.31
- 4.Compensation for wrongful, unfair and unlawful dismissal equivalent of 10 months' salary (10x26,688) of Kshs. 266,880
- 5.Interest on the total awarded sum of Kshs. 325,388.31 from the date of judgment until payment in full at court's rate
- 6.Costs of the suit
- 7.Cost of the Appeal borne by the Respondent
- 8.Stay of 30 days granted
- On appeal from
- Milimani Commercial Chief Magistrate's Court at Nairobi
- MCELRC No. E005 of 2021
- Jurisdiction invoked
- First appellate jurisdiction over the magistrate's court in an employment and labour cause
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Walumoli v Securex Agencies (K) Limited (Employment and Labour Relations Appeal E142 of 2023) [2025] KEELRC 1341 (KLR)", Case Analysis (2025). Nairobi MCELRC Appeal from MCELRC No. E005 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1341/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.