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ELRCPartially AllowedMemorandum of Appeal dated 30th November 2023 (Record of Appeal dated 17th May 2024; Supplementary Record of Appeal dated 24th June 2024)· [2025] KEELRC 1790 (KLR)

Riley Falcon Security Services Limited v Wepukhulu (Appeal E133 of 2023) [2025] KEELRC 1790 (KLR)

Employment and Labour Relations Court
12 June 2025
2,655 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Employment Court ruled a worker resigned rather than was unfairly dismissed, cancelling some awards but upholding overtime and leave payments.

What this practically means

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Executive summary

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This is a first appeal, canvassed by written submissions, against the judgment of a Principal Magistrate who found that an employer (the Appellant) unfairly terminated the employment of its former Night Security Guard (the Respondent) and awarded him compensation for untaken leave (KShs. 36,729), overtime (KShs. 130,650) and unfair termination (KShs. 210,000), plus a certificate of service and costs. Ocharo Kebira J identified three issues: how the separation occurred; whether any termination at the employer's initiative was fair; and whether the reliefs awarded were warranted. The Court held the Respondent's case was confusingly pleaded, simultaneously alleging unfair termination and constructive dismissal, which are mutually exclusive. The evidence, including the Respondent's own witness statement, established that he was suspended on 15 February 2021 pending a disciplinary hearing and resigned by letter on 18 February 2021. He therefore failed to discharge the burden under section 47(5) of the Employment Act of proving unfair termination, and the trial magistrate erred in finding otherwise. The awards of compensation under section 49(1)(c) and notice pay under section 36 were set aside. However, the overtime award was upheld: the Appellant did not rebut the Respondent's claim of 12-hour workdays, and uncompensated continuous overtime is a continuous injury under section 90; absent a cross-appeal, the amount awarded could not be increased. The leave award was also left intact. Each party was ordered to bear its own costs of the appeal.

Key legal issues

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01

Whether the Respondent's employment was terminated at the Appellant's initiative or ended by resignation

Holding

The Respondent resigned by letter dated 18 February 2021, three days after suspension pending a disciplinary hearing; the employment did not end at the Appellant's initiative

Reasoning

The Respondent admitted in his witness statement that he was issued a suspension letter on 15 February 2021 after responding to a show cause letter. He resigned three days later citing injuries from the alleged assault. Section 47(5) required him to prove unfair termination first. The trial magistrate failed to interrogate this pivotal issue and erred in finding unfair termination.

p. 5
02

Whether the constructive dismissal claim was properly pleaded and proved

Holding

The constructive dismissal claim was poorly pleaded and the evidence tendered did not aim at proving it; no relief for harassment and violence was sought in the pleadings

Reasoning

The Respondent pleaded contradictory cases: unfair termination at the employer's initiative and constructive dismissal at his own initiative. Although the alleged assault and attempted stripping could constitute workplace violence contrary to ILO Convention 190 and ground a constructive dismissal claim, no relief for harassment or violence was sought and constructive dismissal was poorly pleaded, so no relief could issue on that basis.

p. 5
03

Whether the overtime award was justified

Holding

The overtime award was justified as the Respondent's 12-hour workday assertion was not rebutted and uncompensated overtime is a continuous injury under section 90

Reasoning

The Respondent contended he worked from 6:00 am to 6:00 pm throughout his tenure and the Appellant did not sufficiently challenge this. Uncompensated continuous overtime constitutes a continuous injury under section 90 of the Employment Act, defeating any limitation argument. Since there was no cross-appeal, the Court upheld the amount awarded by the trial court.

p. 6
04

Whether the awards of compensation for unfair termination and notice pay were warranted

Holding

Having found no unfair termination at the employer's initiative, both reliefs fall away

Reasoning

Compensation under section 49(1)(c) and notice pay under section 36 of the Employment Act are closely tied to claims of unfair termination or wrongful dismissal. Since the employment ended at the Respondent's own initiative through resignation, neither relief was warranted and both awards were set aside.

p. 5

Legal principles established

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  • A first appellate court must reconsider and re-evaluate the evidence and come to its own independent findings while making due allowance for not having seen or heard the witnesses
  • Termination of employment is either at the employer's or the employee's initiative, but cannot be both; one cannot simultaneously claim unfair termination and constructive dismissal
  • Under section 47(5) of the Employment Act the employee bears the initial burden of proving that an unfair termination occurred before the burden shifts to the employer
  • Continuous uncompensated overtime constitutes a continuous injury under section 90 of the Employment Act

Court orders

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  1. 1.The appeal succeeds only to the extent that the termination of the Respondent's employment was not at the initiative of the Appellant
  2. 2.The award of compensatory damages under section 49(1)(c) of the Employment Act is set aside
  3. 3.The award of notice pay is set aside
  4. 4.The award of compensation for earned but untaken leave days (KShs. 36,729) is upheld
  5. 5.The award of overtime compensation (KShs. 130,650) is upheld
  6. 6.Each party shall bear its own costs of the appeal

Authorities

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Legislation

  • Employment Actsection 47(5)
  • Employment Actsection 49(1)(c)
  • Employment Actsection 36
  • Employment Actsection 90
  • Employment Actsection 35
  • Employment Actsection 40
  • ILO Convention 190violence and harassment in the workplace

Cases cited (4)

  • Selle -vs- Associated Motor Boat Co.
    [1968] EA 123
  • Abdul Hameed Saif vs. Ali Mohamed Sholan
    [1955] 22 E.A.C.A. 270
  • The German School Society & another v Ohany & another
    (Civil Appeal 325 & 342 of 2018 (Consolidated)) [2023] KECA 894 (KLR) (24 July 2023)
  • Kenya Ports Authority v Kuston (Kenya) Limited
    (2009) 2EA 212
On appeal from
Principal Magistrate's Court
Cause mentioned in the memorandum of appeal (not reproduced in the judgment extract)
Jurisdiction invoked
First appellate jurisdiction over the trial court's judgment in an employment 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, "Riley Falcon Security Services Limited v Wepukhulu (Appeal E133 of 2023) [2025] KEELRC 1790 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 30th November 2023 (Record of Appeal dated 17th May 2024; Supplementary Record of Appeal dated 24th June 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1790/eng@2025-06-12

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