Kitema v Perfect Scan Limited (Appeal E039 of 2025) [2025] KEELRC 2682 (KLR)
The bottom line
#A Kenyan court confirmed a signed discharge voucher does not erase an employee's statutory dues — the guard won substantial back-pay despite resigning.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.How did the employment of the appellant terminate - resignation or unfair termination?
- 2.Whether the discharge voucher settling terminal dues at Ksh. 46,054 precluded the claims
- 3.Whether the claims for underpayments were time-barred under section 90 of the Employment Act
- 4.Whether the appellant was entitled to leave pay, service pay, house allowance and overtime
Key legal issues
#Mode of termination of employment
Employment terminated through resignation effective 25 December 2023; the resignation letter and discharge voucher were not challenged and the appellant received partial payment under the voucher
The respondent produced a resignation letter dated 30 November 2023 and a discharge voucher dated 19 January 2024. The appellant disputed the letter but called no expert evidence to authenticate or challenge it. The records were not challenged at the consent to file written submissions, and the unchallenged discharge voucher plus partial payment lent credibility to the resignation letter. Notice pay and compensation claims therefore failed, and the counterclaim for notice also failed since one month's notice was given.
Effect of the discharge voucher on statutory entitlements
The voucher settles only what it covers; the court should have weighed it against statutory entitlements, which it cannot negate
Relying on Thomas De La Rue (K) Ltd v David Opondo Omutelema and later authorities, the court held the trial court erred in treating the voucher as settling the entire claim. Statutory dues prescribed by law cannot be negated by a discharge voucher, and the employee cannot be barred from court access. The awards made are therefore payable less the Ksh. 46,054 paid under the voucher.
Underpayment of wages and limitation
Underpayments recoverable only for 12 months back from cessation (December 2022 to December 2023), totalling Ksh. 151,234.20
The appellant was paid Ksh. 6,900 basic while the applicable minimum wage for a night guard in Mombasa in December 2022 was Ksh. 16,959 plus house allowance of Ksh. 2,543.85, a gross of Ksh. 19,502.85, yielding an underpayment of Ksh. 12,602.85 per month. Under section 90, claims before June 2022 were time-barred; the 12-month tail was allowed.
Leave pay and service pay
Leave pay of Ksh. 18,654.90 (33 days under section 28(4)) and service pay of Ksh. 68,257 (7 years at 15 days per year on gross wage) awarded
No evidence was tendered on how leave days were allocated, so the statutory maximum of 33 days under section 28(4) applied on the basic wage of Ksh. 16,959. As a night security guard under the Regulation of Wages (Protective Security Services) Order, 1998, the appellant was entitled to service pay in addition to statutory dues, following Hatari Security Guards Limited v Oduor, computed on the last gross wage for 7 years.
Legal principles established
#- A discharge voucher per se cannot absolve an employer from statutory obligations or preclude the court from enquiring into the fairness of a termination; its validity must be tested case by case
- Under section 35(4) of the Employment Act, a discharge voucher cannot be used to negate terminal dues prescribed by law
- Claims under section 90 of the Employment Act as continuing injuries should be addressed within 12 months from cessation
- In a first appeal, the court must review and reassess the evidence and make its own conclusions
Court orders
#- 1.The judgment in Mombasa CMELRC E056 of 2024 is set aside
- 2.Employment terminated through resignation with effect from 25 December 2023
- 3.Underpayments of Ksh. 151,234.20 awarded
- 4.Leave pay of Ksh. 18,654.90 awarded
- 5.Service pay of Ksh. 68,257 awarded
- 6.The dues shall be paid less what is paid under the discharge voucher at Ksh. 46,054
- 7.Costs of the appeal and lower court proceedings awarded to the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Mombasa CMELRC (ELRC at Mombasa, subordinate court)
- CMELRC No. E056 of 2025
- Jurisdiction invoked
- First appeal from the subordinate court under the Employment and Labour Relations Court Act
Relief refused
#Compensation for unfair termination and notice pay
Employment was found to have ended by resignation, not unfair termination
Overtime claim
Pleadings lacked particulars of how overtime accrued
Unremitted statutory dues (NHIF)
Such dues are owed to the statutory body, not the employee
House allowance as a separate head
Factored into the assessed underpayments
Underpayments before June 2022
Time-barred under section 90 of the Employment Act
Costs
Costs of the appeal and lower court proceedings are awarded (to the appellant).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Employment terminated through resignation with efiect from 25 December 2023;
Accordingly, the appeal has merit, and the judgment in Mombasa CMELRC E056 of 2024 is hereby set aside; the following orders are issued.
The dues above (b), (c), and (d) shall be paid less what is paid under the discharge voucher at Ksh. 46,054.
Under Section 35(4) of the Act, where an employee is entitled to terminal dues prescribed by law, a discharge voucher cannot be used to negate such rights.
This is a first appeal. The court must review, reassess and make its conclusions.
Claims dating back to June 2022 are time-barred.
Issues in the judgment
#Conflicting case numbers for the appeal below - the opening paragraphs cite Mombasa CMELRC No. E056 of 2025 while the disposition refers to 'Mombasa CMELRC E056 of 2024'
Internal inconsistency in dates of effective resignation/cessation - the judgment variously states 25 December 2023 and '25 December 2025'
Internal inconsistency on when the claim was filed - paragraph 25 says January 2024 while paragraph 2 suggests the suit followed termination in December 2023; also the counterclaim notice pay appears as 'Ksh 15. 141.95'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kitema v Perfect Scan Limited (Appeal E039 of 2025) [2025] KEELRC 2682 (KLR)", Case Analysis (2025). Mombasa ELRC Appeal from CMELRC No. E056 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2682/eng@2025-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.