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ELRCPartially AllowedAppeal from MCELRC E1475 of 2020· [2025] KEELRC 2647 (KLR)

Nyagonchoga v Lavington Security Limited (Appeal E203 of 2023) [2025] KEELRC 2647 (KLR)

Employment and Labour Relations Court
26 September 2025
JKJ.W. Keli
4,321 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a dismissed watchman over Kshs. 438,000 after his employer failed to deny or disprove his underpayment claim.

What this practically means

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Executive summary

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The appellant, a former night watchman dismissed by the respondent, appealed against the decision of Hon. Opande S.A (PM) in MCELRC E1475 of 2020 delivered on 20th September 2023, which had partly succeeded in awarding him six months' compensation for unfair termination and one month's salary in lieu of notice (Kshs. 121,884) but dismissed his claims for underpayment, annual leave, public holidays and service pay. The appeal, canvassed by written submissions, raised whether the trial court erred in its findings on underpayment, leave and public holidays. The court applied Selle v Associated Motor Boat Co. and Mbogo v Shah on the first appellate court's duty to re-evaluate evidence while deferring to credibility findings. On leave, the appellant's contradictory testimony led the court to defer to the trial court's finding that the leave claim was a lie. On public holidays, the court held the claim unproved on a balance of probabilities, noting the claimant did not identify the specific holidays worked and the figures in submissions differed from the claim. On underpayment, however, the court found the respondent had not specifically denied the claim, had not cross-examined on it, and the trial court had failed to address it; applying Wanyonyi v Skyman Freighters Limited and Section 26 of the Employment Act with the Regulation of Wages (General) Orders, the court set aside the trial court's decision on this head and awarded underpayment back pay of Kshs. 333,759.58 as a continuing injury filed within 12 months of termination. The appeal succeeded only on underpayment. Judgment was entered for the claimant on unfair termination, notice, compensation and underpayment, with service, leave and public holidays dismissed; the claimant was awarded costs of the suit and the appellant costs of the appeal, with interest on specified items from the date of judgment.

Key legal issues

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01

Underpayment of wages

Holding

The claim succeeded; the trial court's decision on underpayment was set aside and back pay of Kshs. 333,759.58 awarded as pleaded in the claimant's witness statement

Reasoning

The respondent did not specifically deny the underpayment claim in its written response, did not cross-examine the appellant on the issue, and the trial court did not address it. The claim was supported by the applicable Regulation of Wages (General) (Amendment) Orders establishing minimum wages. Being a continuing injury filed within 12 months of termination, it was not time-barred and was awarded as claimed.

p. 8
02

Annual leave

Holding

Dismissed; the trial court's finding that the claimant lied about going on leave was not disturbed

Reasoning

The claimant gave contradictory evidence, at one point stating he went on leave and filled leave forms, and at another that he did not go on leave or sign leave forms. The trial court, which saw and heard the witnesses, found the leave claim to be a lie. Applying Selle v Associated Motor Boat Co., the appellate court deferred to that credibility finding and found no basis to interfere.

p. 7
03

Public holidays

Holding

Dismissed; claim not proved on a balance of probabilities

Reasoning

The claimant's witness statement did not specify the particular holidays worked, and the figure advanced in submissions differed from that claimed in the pleadings. The appellant therefore failed to lay a basis for the claim so as to shift the evidential burden to the respondent. The trial court's reliance on authority requiring claimants to show how figures were arrived at was not faulted.

p. 7
04

Standard for interference with trial court findings

Holding

First appellate court to re-evaluate evidence but defer to credibility findings absent material misdirection

Reasoning

Citing Selle v Associated Motor Boat Co. [1968] EA 123 and Mbogo v Shah, the court reaffirmed that it must reconsider and evaluate the evidence itself while making due allowance for not having seen or heard witnesses, and will not interfere with the exercise of discretion by an inferior court unless the decision is clearly wrong.

p. 6

Legal principles established

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  • Where a claim for underpayment is made and not specifically denied in the response, and the employer did not cross-examine on it, the burden of proving payment at the applicable minimum wage vests in the employer under Section 10(7) of the Employment Act
  • An employer must comply with regulated minimum wages under Section 26 of the Employment Act and the Regulation of Wages (General) Order
  • A first appellate court may re-evaluate evidence but must make allowance for not having seen or heard the witnesses
  • An appellate court will not interfere with the exercise of discretion by an inferior court unless satisfied the decision is clearly wrong

Court orders

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  1. 1.Judgment entered for the claimant against the respondent: the Claimant's termination was unlawful and unfair
  2. 2.The Claimant is awarded one month in lieu of notice at Ksh. 17,412
  3. 3.The Claimant is awarded six months compensation at Ksh. 104,472.20
  4. 4.The claimant is awarded underpayment backpay for Kshs. 333,759.58
  5. 5.The Claimant's prayers for service, annual leave and public holidays are dismissed
  6. 6.The Claimant is awarded the costs of the suit
  7. 7.Interest awarded on the notice, compensation, underpayment and costs items at court rates from the date of Judgment
  8. 8.The appellant is awarded costs of the appeal
On appeal from
Magistrates' Court (ELRC at Nairobi)
MCELRC E1475 of 2020
Jurisdiction invoked
First appellate jurisdiction over the trial Magistrates' Court (Employment and Labour Relations Court Act); appeal against judgment in MCELRC E1475 of 2020

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, "Nyagonchoga v Lavington Security Limited (Appeal E203 of 2023) [2025] KEELRC 2647 (KLR)", Case Analysis (2025). Appeal from MCELRC E1475 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2647/eng@2025-09-26

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