Riley Falcon Security Services Limited v Wepukhulu (Appeal E133 of 2023) [2025] KEELRC 1790 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Respondent's employment was terminated at the Appellant's initiative or ended by resignation
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
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.
Whether the constructive dismissal claim was properly pleaded and proved
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
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.
Whether the overtime award was justified
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
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.
Whether the awards of compensation for unfair termination and notice pay were warranted
Having found no unfair termination at the employer's initiative, both reliefs fall away
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.
Legal principles established
#- 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
#- 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.The award of compensatory damages under section 49(1)(c) of the Employment Act is set aside
- 3.The award of notice pay is set aside
- 4.The award of compensation for earned but untaken leave days (KShs. 36,729) is upheld
- 5.The award of overtime compensation (KShs. 130,650) is upheld
- 6.Each party shall bear its own costs of the appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.