Wakhu & another v Kassim & 2 others (All Sued in their Capacity as the Registered Trustees of Markazul Hidaya) (Employment and Labour Relations Appeal E131 of 2023) [2025] KEELRC 1347 (KLR)
The bottom line
#Kenya's Employment Court cut compensation for two unfairly-fired security guards to one month's notice pay but awarded them house allowance, confirming employees must prove overtime claims themselves.
What this practically means
#Executive summary
#Key legal issues
#Validity of the reason for termination (theft/misconduct allegations)
The trial court's finding on the validity of the reason for termination was not disturbed since both appellants admitted apologising for theft allegations
Both appellants admitted in cross-examination to having apologised for theft allegations and having had a meeting with the employer over the issue. The court therefore found no basis to disturb the trial court's finding that the reason for termination was valid, though the termination was procedurally flawed for want of a hearing under section 41.
Quantum of compensation for procedural unfairness
Three months' salary awarded by the trial court was substituted with one month's notice pay under section 35 of the Employment Act
Section 49 of the Employment Act provides various remedies the trial court may choose. On procedural fairness, notice pay applies. Since there was no contract of employment or CBA, one month notice pay under section 35 applied, making the three months' salary award erroneous and liable to substitution.
House allowance claim
Allowed; section 31 of the Employment Act provides housing as a statutory right and the claimants were not housed, so house allowance was awarded as back pay
The claimants pleaded payment below the 2018 minimum wage for night guards with no house allowance at 15%. The claim was not disputed. Housing is a statutory right under section 31 and the claimants were not housed. The trial court erred in not making a finding on it; back pay was limited to 12 months under section 89.
Overtime and public holidays
Dismissed for lack of proof; the burden of proving excess hours rests with the employee
There was no proof of excess hours worked and it was implausible that the employees worked round the clock. Relying on Rogoli Ole Manadiegi v General Cargo Services Limited, the employer's default in producing records does not establish an overtime claim; the burden lies on the employee. The trial court's finding was not interfered with.
Legal principles established
#- On a first appeal the court reconsiders and re-evaluates the evidence and draws its own conclusions, while making due allowance for not having seen or heard the witnesses
- An appellate court will not interfere with the exercise of discretion by an inferior court unless the decision is clearly wrong
- In an overtime claim, the employer's default in producing records does not establish the claim; the burden of establishing excess hours rests with the employee
- An employee cannot be compensated where the reasons for termination based on misconduct are valid, even if procedure was unfair
- Back pay awards are limited to 12 months as a continuing injury under section 89 of the Employment Act
Court orders
#- 1.The Judgment of the Honourable B.C. Mulemia (CM) delivered on 12th June 2023 is set aside and substituted
- 2.Declaration that the claimants' employment was unprocedurally terminated
- 3.Notice pay of one month to each claimant at Kshs. 17,412
- 4.Back pay house allowance to each claimant of Kshs. 88,569
- 5.Certificate of service to issue to the claimants
- 6.Interest at court rates from date of judgment
- 7.Costs of the suit to the claimants
- 8.The appellants are awarded costs of the appeal
- On appeal from
- Chief Magistrate's Court (Employment and Labour Relations)
- Nairobi CMEL No. E131 of 2023
- Jurisdiction invoked
- First appellate jurisdiction over the trial magistrate's court (Employment and Labour Relations Court appeal from Nairobi CMEL No. E131 of 2023)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wakhu & another v Kassim & 2 others (All Sued in their Capacity as the Registered Trustees of Markazul Hidaya) (Employment and Labour Relations Appeal E131 of 2023) [2025] KEELRC 1347 (KLR)", Case Analysis (2025). Nairobi ELRCA No. E131 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1347/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.