Total Security Surveillance Limited v Wekesa (Appeal E146 of 2024) [2025] KEELRC 1930 (KLR)
The bottom line
#Kenya's Employment Court ruled that a security guard who resigned cannot claim unfair termination compensation, and employers' unchallenged records will be believed.
What this practically means
#Executive summary
#Key legal issues
#Whether there was unfair termination
No; the respondent voluntarily resigned on 12 January 2022 before the end of his term contract, so the trial court's finding of unfair termination was erroneous
The employer filed contracts and a notice of resignation before the hearing, which the respondent never challenged or replied to until the hearing date. Under sections 10(6) and (7) of the Employment Act the employer must file work records, and the court must believe them where unchallenged. The learned magistrate erred in failing to address the resignation letter and term contracts on their merits.
Entitlement to notice pay and compensation after resignation
A resigned employee cannot claim notice pay or 12 months' compensation; the remedy on resignation is to serve the notice period or pay in lieu
Upon an employee's resignation the option is to serve the notice period or pay in lieu, but the employee cannot be held back against his will. The respondent voluntarily terminated his employment before the end of his contract; the claims for notice pay and compensation were therefore unjustified and the trial court's award on those heads could not stand.
Claims for underpayment, house allowance, overtime and leave
All rejected; the respondent earned Ksh.15,609 per month consistent with the Wage Orders, with house allowance included, no overtime worked, and leave fully taken
The contracts and payment statements confirmed wages of Ksh.15,609 against a Mombasa minimum wage for a day guard of Ksh.13,572.90 plus house allowance of Ksh.2,035.80. Attendance sheets showed no overtime and confirmed rest days; leave records showed 26 days, 19 days and 7 days fully spent.
Claim for service pay
Not payable because the employer contributed to NSSF and NHIF; section 35(6) of the Employment Act excludes gratuity to avoid double payment
Although the Regulation of Wages (Protective Security Services) Order, 1998 provides for service/gratuity, contributing to the NSSF ensures social protection in retirement, and requiring additional payments would amount to double compensation. This exclusion under section 35(6) was upheld by the Court of Appeal and reaffirmed by the ELRC.
Legal principles established
#- On a first appeal the court must re-evaluate the evidence adduced before the trial court and draw its own conclusions
- An employee who resigns cannot be held back against his will; forcing him to remain at work beyond notice would amount to slavery and servitude contrary to Article 30 of the Constitution
- Unless the employer waives the notice period under section 36 of the Employment Act, resignation without notice is irregular
- Payment of statutory dues to NSSF and NHIF insulates the employer from paying gratuity under the Wage Orders to avoid double payment (section 35(6) Employment Act)
Court orders
#- 1.Judgment in Mombasa CMELRC No. E045 of 2022 set aside
- 2.Appellant awarded costs of the appeal
- On appeal from
- Magistrates' Court (ELRC), Mombasa
- Mombasa CMELRC No. E045 of 2022
- Jurisdiction invoked
- First appeal from the trial court in employment and labour relations matter (ELRC appellate jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Total Security Surveillance Limited v Wekesa (Appeal E146 of 2024) [2025] KEELRC 1930 (KLR)", Case Analysis (2025). Employment and Labour Relations Appeal (Mombasa) — judgment of 30 June 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1930/eng@2025-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.