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ELRCPartially AllowedMemorandum of Appeal dated 25th October 2023, arising from Mavoko CMEL Suit No. E025 of 2022· [2025] KEELRC 3706 (KLR)

Kisaka v Texas Alarms (K) Limited (Appeal E013 of 2023) [2025] KEELRC 3706 (KLR)

Employment and Labour Relations Court
17 December 2025
6,079 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan security guard won Kshs. 404,000 in unpaid overtime on appeal, but his unfair dismissal claim failed because he never actually resigned.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Nairobi against the judgment of Hon. E.K. Suter (M) delivered on 28th September 2023 in Mavoko CMEL Suit No. E025 of 2022, which dismissed the appellant-claimant's employment claim (arising from his arrest and detention from 30th December 2021 to 7th March 2022 and subsequent non-resumption of work) with each party bearing own costs. The appellant sought setting aside of that judgment and judgment as prayed in his statement of claim of Kshs. 979,400 with paternity leave and a certificate of service. The appeal was canvassed by written submissions. The court framed two issues: whether the trial court erred in finding the appellant's employment was not unfairly terminated, and whether the appellant was entitled to the reliefs sought. On the first issue, the court upheld the trial court: there was no termination by the employer; a warning letter was a disciplinary sanction the appellant declined to sign, and having never resigned, he could not claim constructive dismissal. Non-payment of wages during detention was lawful under section 18(6) of the Employment Act. On the second issue, the court found the salary of Kshs. 15,400 was above the applicable Mavoko minimum wage, defeating the underpayment and house allowance claims; week-off, leave and uniform claims also failed. However, the appellant was entitled to December 2021 wages (Kshs. 13,400 after deducting a Kshs. 2,000 advance) and overtime of Kshs. 404,000, since the 12-hour shift clause was prima facie evidence of overtime worked and wages exceeded minimum wage by only Kshs. 1,000 monthly. The trial judgment was set aside and substituted with judgment on those two heads, plus costs of the suit and appeal and interest at court rates. Thirty days' stay was granted.

Key legal issues

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01

Whether the appellant's employment was unfairly terminated or constructively dismissed

Holding

No termination or constructive dismissal was established; the employer issued a warning letter as a disciplinary measure and the appellant never resigned

Reasoning

The appellant was arrested and detained but returned to the office; he was issued a warning letter which he declined to sign and instead filed suit. Since constructive dismissal requires the employee to resign in response to a repudiatory breach, and the appellant never resigned, no dismissal arose. The non-payment of salary during detention was lawful under section 18(6) of the Employment Act and could not ground constructive dismissal.

p. 9
02

Whether salary was payable for December 2021 to March 2022

Holding

Salary for December 2021 awarded (Kshs. 13,400 after deducting Kshs. 2,000 advance); wages for the detention period not payable under section 18(6)

Reasoning

The respondent admitted the appellant worked until end of December 2021 and was only paid an advance of Kshs. 2,000, entitling him to December wages. Wages for the period in custody are statutorily barred under section 18(6) of the Employment Act, so the arrest-period claim failed.

p. 10
03

Whether the appellant was entitled to overtime

Holding

Overtime awarded at Kshs. 404,000, being the amount sought less Kshs. 1,000 per month already paid above minimum wage for 70 months

Reasoning

The contract provided for 12-hour shifts with wages inclusive of overtime and housing allowance. Under the Regulation of Wages (General) Order, normal weekly hours are capped and overtime attracts enhanced rates. The court found the clause was prima facie evidence of overtime worked, and that wages paid exceeded minimum wage by only Kshs. 1,000 monthly, which was deducted from the award.

p. 11
04

Whether underpayment, house allowance, week offi pay, leave and uniform dues claims were proved

Holding

All dismissed; salary paid was above the applicable Mavoko minimum wage inclusive of housing

Reasoning

The payslip showed a monthly wage of Kshs. 15,400, above the Mavoko municipality minimum wage of Kshs. 12,522.70 plus 15% housing. Leave was admitted on oath and signed forms produced; week-off days were included in the 30-day payslip; the uniform claim was not justified. The court found no basis to interfere with the trial court's findings.

p. 10

Legal principles established

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  • Wages are not payable for a period during which an employee is detained in custody or serving a sentence of imprisonment
  • Constructive dismissal cannot arise where the employee never resigned
  • A contract clause stating wages are inclusive of overtime is prima facie evidence that the claimant worked overtime
  • A court cannot rewrite a contract between parties bound by its terms

Court orders

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  1. 1.The Judgment and Decree of the Hon. E.K. Suter (M) delivered on 28th September 2023 in Mavoko CMEL Suit No. E025 of 2022 is set aside and substituted
  2. 2.Judgment entered for the claimant against the respondent: December salary Kshs. 15,400 less salary advance of Kshs. 2,000, award of Kshs. 13,400
  3. 3.Overtime awarded at Kshs. 404,000/-
  4. 4.Cost of the suit and interest at court rate from the judgment date
  5. 5.The appellant is awarded costs of the appeal
  6. 6.30 days stay granted
On appeal from
Magistrates' Court at Mavoko (CMEL)
Mavoko CMEL Suit No. E025 of 2022
Jurisdiction invoked
First appellate jurisdiction over a suit from the magistrates' court (Employment and Labour Relations Court); no specific constitutional/statutory provision stated in the judgment

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, "Kisaka v Texas Alarms (K) Limited (Appeal E013 of 2023) [2025] KEELRC 3706 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 25th October 2023, arising from Mavoko CMEL Suit No. E025 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3706/eng@2025-12-17

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