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ELRCPartially AllowedMombasa CMELRC No. 688 of 2021 (appeal)· [2025] KEELRC 1952 (KLR)

Brinks Security Services Limited v Salim (Appeal E108 of 2024) [2025] KEELRC 1952 (KLR)

Employment and Labour Relations Court
30 June 2025
1,482 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a first appeal against the judgment of 15 May 2024 in Mombasa CMELRC No. 688 of 2021, in which a night security guard employed from 1 February 2017 at Ksh.10,500 monthly claimed he was unfairly dismissed on 15 August 2021 after attending his uncle's burial, and was awarded various terminal dues. The court on first appeal reassessed the record. It held that the respondent's absence without permission was desertion constituting gross misconduct under section 44(4)(a) of the Employment Act; the employer's notice of 17 August 2021, served and copied to the Labour Officer, was undisputed, and the respondent's own testimony confirmed his leave request was never approved. Accordingly, notice pay and the 12 months' compensation were set aside, as was severance pay, which accrues only on redundancy. The overtime claim of Ksh.323,213 failed for lack of evidence and specificity, applying the continuing-wrong doctrine from The German School Society v Ohany but holding that delay combined with lack of specificity invalidated it. The court affirmed the claim for off-days as justified for want of allocation records, confirmed the entitlement to wages for 10 days worked in August 2021 (Ksh.5,202.65) under sections 17 and 18, and confirmed underpayment of wages at Ksh.199,244.55 for 39 months against the applicable Wage Order. The appeal thus succeeded in part. Judgment in the cause was reviewed, with each party bearing its own costs for the appeal and trial proceedings.

Key legal issues

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01

Whether the respondent deserted duty or was unfairly terminated

Holding

He deserted duty; absence without permission is gross misconduct and notice pay and compensation are not due

Reasoning

The respondent did not dispute the notice dated 17 August 2021 served on him and copied to the Labour Officer as required. His testimony showed his request to attend the burial was not approved. Desertion is gross misconduct under section 44(4)(a), obliging the employer to issue notice; summary dismissal was justified and the desertion was a fundamental breach of the employment relationship.

p. 2
02

Payment for days worked in August 2021

Holding

Payable regardless of termination reason, under sections 17 and 18 of the Employment Act; Ksh.5,202.65 for 10 days

Reasoning

The employee earned wages for work actually done up to 10 August 2021. Using the gross monthly wage of Ksh.15,608.85 under the applicable Wage Order, the court computed 10 days' pay as Ksh.5,202.65, confirming this entitlement survives even a lawful summary dismissal.

p. 3
03

Overtime claim

Holding

Not proved; generalised claim over three years fails on delay and lack of specificity

Reasoning

The respondent alleged 12-hour night shifts and 10-hour day shifts but produced no supporting evidence; the difference between shifts was not addressed and the claim over three years for six days was generalised. The court applied the continuing-injury doctrine from the German School Society case but held delay plus lack of specificity invalidated the claim.

p. 3
04

Underpayment of wages

Holding

Upheld at Ksh.199,244.55 for 39 months based on the applicable Wage Order

Reasoning

The respondent was paid Ksh.10,500 monthly while the 2017 Wage Order prescribed a basic wage of Ksh.13,572.90 plus 15% house allowance, totalling Ksh.15,608.85, creating an underpayment of Ksh.5,108.85 monthly over 39 months of service.

p. 4

Legal principles established

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  • Absence from work without the employer's permission is gross misconduct justifying summary dismissal, and the employer must issue a notice to address the absence and a termination notice copied to the Labour Officer
  • Regardless of the reason for termination, the employee must be paid wages for days worked
  • Generalised, unspecified overtime claims accumulated over years are invalidated by delay and lack of specificity

Court orders

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  1. 1.Pay for 10 days worked in August 2021 Ksh.5,202,65
  2. 2.Underpayment of wages Ksh.199,244.55
  3. 3.Each party to bear its costs for the appeal and trial court proceedings

Authorities

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Legislation

  • Employment ActSection 35
  • Employment ActSection 18
  • Employment ActSection 44(4)(a)
  • Employment ActSection 27
  • Employment ActSections 17 and 18
  • Employment ActSection 89
  • Employment ActSection 90

Cases cited (2)

  • The German School Society & another v Ohany & another
    (Civil Appeal 325 & 342 of 2018 (Consolidated)) [2023] KECA 894 (KLR)
  • Gontier v Acacia Medical Centre Limited
    [2024] KEELRC 2282 (KLR)
On appeal from
Employment and Labour Relations Court, Mombasa (trial)
Mombasa Cause No. E688 of 2021
Jurisdiction invoked
First appellate jurisdiction under the Employment and Labour Relations Court Act over judgments of the ELRC subordinate court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Brinks Security Services Limited v Salim (Appeal E108 of 2024) [2025] KEELRC 1952 (KLR)", Case Analysis (2025). Mombasa CMELRC No. 688 of 2021 (appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1952/eng@2025-06-30

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