Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedMCELRC Appeal (Nairobi)· [2025] KEELRC 1591 (KLR)

Mars Security Guards Limited v Omedi (Appeal E270 of 2023) [2025] KEELRC 1591 (KLR)

Employment and Labour Relations Court
23 May 2025
JKJ. W. Keli
3,784 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This is a first appeal by the employer against the judgment of Honourable R.L. Musiega (SRM) delivered on 1st December 2023 in MCELRC No. E380 of 2022, which awarded the claimant (respondent herein) Kshs. 66,800/- comprising leave pay for two years and unpaid salaries for March and April 2019. The appeal was canvassed by written submissions. The appellant contended that the respondent had voluntarily agreed to sell his leave days to offset losses from items stolen at a client's premises he guarded, and that he absconded duty from 23rd March 2019 before resigning on 12th April 2019. The respondent argued there is no such thing as selling statutory leave days, no disciplinary process or surcharge policy existed, and no evidence of absconding. Applying Selle v Associated Motor Boat Co., the court re-evaluated the evidence. It found the claimant never admitted theft, no policy or contractual clause supported surcharge, the cost of the stolen items was never disclosed, and the offer to sell leave was never accepted - an offer must be accepted to be valid. Following Joseph Makau Munyao v Kenya Ports Authority, it held surcharge must be quantified and proved as special damage, and leave days are a vested property of the employee. On salaries, the court found the claimant resigned on 12th April 2019 and the resignation was accepted on even date, ending the employment relationship; only March salary and 12 days of April were payable. The trial court's judgment was set aside and substituted with an award of Kshs. 56,780/- (leave pay Kshs. 33,400 and unpaid salaries Kshs. 23,380) with interest at court rate from the date of judgment, plus costs of the suit; each party to bear their own costs of the appeal.

Key legal issues

#
01

Whether the respondent was entitled to unpaid leave pay of Kshs. 33,400 despite the purported 'sale' of leave days

Holding

The trial court did not err; the offer to sell leave days was never accepted, there was no disciplinary process, no policy permitting surcharge, and the loss was neither pleaded nor proved

Reasoning

The court re-evaluated the evidence and found the claimant never admitted theft, there was no contractual or policy basis for surcharge, no disclosure of the cost of the stolen items, and no leave records accounting for the days. The stolen goods belonged to a third party who had not demanded actual costs. Relying on Joseph Makau Munyao v Kenya Ports Authority, the court held the surcharge arbitrary since leave is a vested statutory entitlement.

p. 6
02

Whether the respondent was entitled to salaries for March and the whole of April 2019

Holding

The respondent was entitled to March salary and only 12 days of April salary, having resigned on 12th April 2019 with acceptance on even date

Reasoning

The claimant tendered his resignation on 12th April 2019 and the employer accepted it on the same date, terminating the employment relationship. Although the employer alleged absconding from 23rd March 2019, the claimant wrote a letter on 30th March 2019 seeking to return to duty, undermining that claim. The award for the full month of April was therefore disturbed and recomputed pro rata.

p. 7

Legal principles established

#
  • An offer must be accepted to be valid; an employer cannot unilaterally surcharge an employee's statutory leave days without proof of the loss and a disciplinary process
  • Surcharge must be treated as special damage, quantified and proved; leave days are a vested property of the employee
  • Upon resignation and its acceptance, the employer-employee relationship ends and salary is payable only up to the date of resignation

Court orders

#
  1. 1.Judgment of R.L. Musiega (SRM) delivered 1st December 2023 set aside and substituted
  2. 2.Judgment entered for the claimant against the respondent: annual leave pay in lieu Kshs. 33,400
  3. 3.Unpaid March salary and 12 days of April 2019 salary Kshs. 23,380
  4. 4.Total sum of Kshs. 56,780 with interest at court rate from date of judgment
  5. 5.Costs of the suit awarded to the claimant
  6. 6.Each party to bear their own costs in the appeal

Authorities

#

Legislation

  • Employment Actsection 74

Cases cited (5)

  • Selle v Associated Motor Boat Co.
    [1968] EA 123
  • Mbogo v Shah
    [1968] EA Page 93
  • Joseph Makau Munyao & 4 others v Kenya Ports Authority & another
    [2016] KEELRC 1692 (KLR)
  • Ronald Nyambu Daudi v Tornado Carriers Limited
    [2019]
  • Evans Ochieng Oluoch v Njimia Pharmaceuticals Limited
    [2016] eKLR
On appeal from
Chief Magistrate's Court (Employment and Labour Relations, Nairobi)
MCELRC No. E380 of 2022
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Court in an employment claim

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mars Security Guards Limited v Omedi (Appeal E270 of 2023) [2025] KEELRC 1591 (KLR)", Case Analysis (2025). MCELRC Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1591/eng@2025-05-23

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