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ELRCPartially AllowedNairobi MCELRC Appeal from MCELRC No. E005 of 2021· [2025] KEELRC 1341 (KLR)

Walumoli v Securex Agencies (K) Limited (Employment and Labour Relations Appeal E142 of 2023) [2025] KEELRC 1341 (KLR)

Employment and Labour Relations Court
9 May 2025
2,251 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The appellant, Elvis Masete Walumoli, appealed against the judgment of Hon. Rawlings Liluma Musiega delivered on 14th July 2023 in Nairobi MCELRC No. E005 of 2021, which had found his dismissal substantially fair but procedurally deficient and awarded only one month's notice pay and a certificate of service, with each party bearing its own costs. The appeal was canvassed by written submissions. Guided by Selle v Associated Motor Boat Co. Ltd and Mbogo v Shah, the court framed two issues: whether the trial court erred on the fairness of the termination, and whether the appellant was entitled to the reliefs sought. The court found no contest that there was no hearing before termination and no proof of service of the show cause or dismissal letter. Critically, the respondent's witness admitted having computed salary for September 2020 and five days of October 2020, corroborating the claimant's evidence that he returned to work after the alleged June 2020 dismissal, which defeated the absconding defence. The court held the termination unfair for lack of procedural fairness and absence of a valid reason, overturning the trial court's decision. Compensation of ten months' salary (Kshs. 266,880) was awarded under section 49 of the Employment Act, together with notice pay of Kshs. 26,688 and salary arrears of Kshs. 31,820.31, totalling Kshs. 325,388.31 with interest. Overtime and service pay claims failed. The trial judgment was set aside and substituted accordingly, with costs of the suit and appeal to the appellant, and a 30-day stay granted.

Key legal issues

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01

Whether the termination was substantively and procedurally fair

Holding

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

Reasoning

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.

p. 5
02

Whether the claimant was entitled to compensation for unfair termination

Holding

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

Reasoning

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.

p. 5
03

Whether the claimant was entitled to overtime

Holding

Overtime claim failed because payslips showed a constant Monthly OT item that was not disputed by the claimant

Reasoning

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.

p. 5
04

Whether the claimant was entitled to service pay

Holding

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

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.Declaration that the Appellant suffered unfair wrongful and unlawful dismissal from employment
  2. 2.One month's salary in lieu of notice of Kshs. 26,688.00
  3. 3.Salary for the month of September 2020 and 5 days in October 2020 of Kshs. 31,820.31
  4. 4.Compensation for wrongful, unfair and unlawful dismissal equivalent of 10 months' salary (10x26,688) of Kshs. 266,880
  5. 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. 6.Costs of the suit
  7. 7.Cost of the Appeal borne by the Respondent
  8. 8.Stay of 30 days granted

Authorities

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Legislation

  • Employment Actsection 47(5)
  • Employment Actsection 49
  • Employment Actsection 35(6)

Cases cited (2)

  • Selle v Associated Motor Boat Co. Ltd
    [1968] EA 123
  • Mbogo v Shah
    [1968] EA
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

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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, "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.