Patrick v Hatari Security Guard Limited (Appeal E068 of 2025) [2025] KEELRC 2677 (KLR)
The bottom line
#A Kenyan security guard who skipped work without a medical certificate lost most claims, but won Ksh.33,970 for being underpaid.
What this practically means
#Executive summary
#Key legal issues
#Burden of justifying termination under section 43
The appellant argued the respondent failed to discharge the burden, but the court found the desertion was justified and the magistrate's assessment of the facts was sound, so the dismissal finding stood.
The court applied the framework that the employee bears the initial burden under section 47(5) to show unfair termination, while the employer must justify reasons under section 43. Here the appellant was granted medical time off but never returned, submitted no medical certificate, and the desertion was reported to the labour office under section 18. The trial magistrate's factual findings were therefore upheld on all heads except underpayment.
Sick leave and medical certificate requirements
An employee allowed time off for a medical check-up must, upon return, submit a medical certificate; failing that, absence amounts to desertion.
Relying on sections 30 and 34 of the Employment Act and cited authorities, the court held that although an employee enjoys the right to seek medical attention, that right is conditioned on communicating the sickness and supplying a medical certificate from a recognised facility within reasonable time. The appellant did neither and instead filed suit, so his absence from 10 April 2023 was unjustified desertion.
Underpayment contrary to Wage Orders
The appellant was underpaid as a Mombasa security guard between February and April 2022; the award of Ksh.33,970 for the continuing injury under section 90 was substituted.
The respondent did not file payment statements and did not challenge the asserted wage of Ksh.13,000 per month, which was confirmed by a contract dated 17 February 2022. The applicable minimum wage under the Wage Orders 2018 was Ksh.13,752.90, producing an underpayment of Ksh.2,815.80 per month, and as a continuing injury under section 90 the aggregate for 12 months was Ksh.33,970.
Legal principles established
#- On a first appeal the court re-evaluates the material on record but should be reluctant to upset findings turning on witness credibility absent compelling grounds
- An employee permitted time off for medical attention must submit a medical certificate from a recognised medical facility upon return to work
- An employee who desertes duty cannot claim notice pay or compensation for unfair termination
- Underpayment contrary to Wage Orders is a continuing injury recoverable for 12 months under section 90 of the Employment Act
Court orders
#- 1.Appeal allowed to the extent only that judgment in Mombasa CMELRC No. E010 of 2024 is reviewed with an award of underpayments at Ksh.33,970
- 2.Each party to bear its own costs
- On appeal from
- Mombasa CMELRC
- E010 of 2024
- Jurisdiction invoked
- First appeal under the Employment Act framework (Employment and Labour Relations Court appellate jurisdiction); sections 43, 47(5), 90 of the Employment Act central
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick v Hatari Security Guard Limited (Appeal E068 of 2025) [2025] KEELRC 2677 (KLR)", Case Analysis (2025). Mombasa ELRC Appeal (judgment delivered 2 October 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2677/eng@2025-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.