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ELRCPartially AllowedEldoret ELRC Appeal (Memorandum of Appeal dated 6th March, 2024), arising from Eldoret CMELRC No. E054 of 2021· [2025] KEELRC 2085 (KLR)

PG Security Limited v Ndiwa (Employment and Labour Relations Appeal E013 of 2024) [2025] KEELRC 2085 (KLR)

Employment and Labour Relations Court
10 July 2025
5,253 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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A Kenyan court confirmed a security guard was unfairly terminated after a workplace injury, but cut his compensation to the legal 12-month maximum.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Eldoret (Maureen Onyango, J) determined a first appeal by PG Security Limited against the judgment of the Eldoret magistrates' court (CMELRC No. E054 of 2021) delivered on 17th February 2023, which had found that the Respondent's, Isaac Ndiwa's, employment as a security guard was unfairly terminated. The Respondent, injured in an accident on duty at Lake Oil Limited on 30th July 2020, was granted 60 days' sick leave; he later signed a letter dated 29th September 2020 on its face a resignation, which he said he was told to sign to obtain a refund of uniform deductions. The appeal was disposed of by written submissions. Applying the Selle principles, the court re-evaluated the evidence and upheld the trial court's finding of unfair termination: the resignation letter was inconsistent with the Respondent's stated intention to resume duties once recovered, a plea of non est factum was open to him, and RW1's evidence of an unwithdrawn desertion letter dated 14th August 2020 meant employment may already have ended; in any event the Respondent was absent for lawful cause, so a desertion dismissal would be unfair under section 44(4)(a). On the awards, the declaration of unfair dismissal, one month's salary in lieu of notice (Kshs. 10,000) and costs of the lower court were upheld. However, the compensation awards (Kshs. 100,000 plus 17 months' salary at Kshs. 225,000) exceeded the twelve-month maximum in section 49(1)(c) of the Employment Act and, weighed against the section 49(4) factors, were inordinately high. The court set aside the compensation award and substituted Kshs. 60,000, equivalent to six months' salary. The appeal was partially allowed; each party was ordered to bear its own costs of the appeal, with the lower court's costs order upheld. Judgment was delivered virtually on 10th July 2025.

Key legal issues

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01

Whether the Respondent voluntarily resigned or was unfairly terminated

Holding

The letter dated 29th September 2020, on its face a resignation, did not establish voluntary resignation; the termination was unfair for want of a justifiable or lawful reason

Reasoning

The Respondent testified he did not write or originate the resignation letter and signed only to obtain a uniform refund, raising a plea of non est factum. The letter itself stated he intended to resume duties once recovered, contradicting a voluntary resignation. RW1's evidence that a desertion letter dated 14th August 2020 was issued and never withdrawn meant employment may already have ended. Either route leads to unfair termination since the Respondent had lawful cause for absence.

p. 10
02

Whether the trial court's awards were sustainable

Holding

The declaration, one month's pay in lieu of notice and costs were upheld; the compensation awards were set aside as excessive and substituted with Kshs. 60,000 (6 months' salary)

Reasoning

The Respondent was awarded compensation separately for unlawful termination and unfair dismissal, and the 17-month award exceeded the statutory maximum of twelve months under section 49(1)(c). Weighing the section 49(4) factors, the court found the compensation inordinately high, and in exercise of its discretion substituted an award of six months' salary while leaving the rest of the trial court's awards undisturbed.

p. 11
03

Whether the Respondent could be dismissed for desertion

Holding

No - he was absent for lawful cause known to the Appellant, so dismissal for desertion would itself be unfair

Reasoning

The Appellant's own witness confirmed there was an agreement that the Respondent could return to work after recovery, and the desertion letter was issued while the Respondent was on 60 days' sick leave following a workplace accident. Since section 44(4)(a) permits dismissal for absenteeism only where the absence is without leave or other lawful cause, and the Appellant knew the cause, a desertion-based dismissal could not stand.

p. 10

Legal principles established

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  • A first appellate court must re-evaluate and re-examine the evidence adduced in the trial court and reach its own findings, bearing in mind it did not hear or see the parties testify.
  • Compensation for unfair termination under section 49(1)(c) of the Employment Act cannot exceed twelve months' gross salary.
  • A plea of non est factum is an exception to the rule that a party is bound by a document he has signed.
  • Absenteeism constitutes a justifiable ground for summary dismissal under section 44(4)(a) only if the employee is absent without leave or other lawful cause.

Court orders

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  1. 1.Upheld the finding of the trial court that the termination of the Respondent's employment was unfair and the declaration that the dismissal was unfair
  2. 2.Set aside the trial court's award of compensation for unfair termination (Kshs. 100,000 and 17 months' salary at Kshs. 225,000) and substituted an award of Kshs. 60,000 equivalent to 6 months' salary
  3. 3.Upheld the award of one month's salary in lieu of notice at Kshs. 10,000
  4. 4.Upheld the order for costs of the lower court and interest until payment in full
  5. 5.Ordered each party to bear its own costs of the appeal

Authorities

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Legislation

  • Employment Act 2007section 49(1)(c)
  • Employment Act 2007section 49(1)
  • Employment Act 2007section 49(4)
  • Employment Act 2007section 50
  • Employment Act 2007section 43
  • Employment Act 2007sections 45(1) and (2)
  • Employment Act 2007section 41
  • Employment Act 2007section 47(5)
  • Employment Act 2007section 44(4)(a)
  • Employment Act 2007section 44(4)(g)
  • Employment Act 2007section 30
  • Employment Act 2007section 34
  • Employment Act 2007section 25
  • Constitution of Kenya 2010Article 41(2)
  • Constitution of Kenya 2010Article 43(2)
  • National Insurance Fund Actsection 6, CAP 255

Cases cited (12)

  • Selle & Another v Associated Motor Boat Co. Ltd & Another
    (1968) EA 123
  • Rose Mwikali Nzuki v Food for Hungry Kenya
    [2015] eKLR
  • Kenneth Kimani Mburu v Kibe Mungai Holdings Limited
    [2014] eKLR
  • David M. Potter v New Brunswick Legal Aid Services Commission, a Statutory Body Incorporate Pursuant to a Special Act of Province of New Brunswick
    2015 SCC
  • Benard Muriuki Gikandi v Kenya Wildlife Services
    [2022] eKLR
  • Texas Alarms (K) Limited v Juma Ramadhan Sadiki
    [2021] eKLR
  • Mbae (Suing as the legal Representative of the Estate of Koome Mbae) v Kinya
    (Civil Appeal E018 of 2022) [2024] KEHC 2285 (KLR)
  • Francis Njeru Kariuki v Kenya Institute of Management
    [2014] eKLR
  • Samson Irungu Karuma v Kenya Nut Company Limited
    [2021] eKLR
  • Levison v Patent Steam Carpet Cleaning Company Ltd
    (1977) 3 ALL ER 498
  • Milton M Isanya v Aga Khan Hospital Kisumu
    [2017] eKLR
  • Joseph Matiti Maema & 3 others v Kabiro Builders Limited
    (2016)
On appeal from
Eldoret Chief Magistrate's Court (CMELRC)
E054 of 2021
Jurisdiction invoked
First appeal from the magistrates' court (ELRC appellate jurisdiction under the Employment and Labour Relations Court Act); appeal decided on written submissions

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, "PG Security Limited v Ndiwa (Employment and Labour Relations Appeal E013 of 2024) [2025] KEELRC 2085 (KLR)", Case Analysis (2025). Eldoret ELRC Appeal (Memorandum of Appeal dated 6th March, 2024), arising from Eldoret CMELRC No. E054 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2085/eng@2025-07-10

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