Kisaka v Texas Alarms (K) Limited (Appeal E013 of 2023) [2025] KEELRC 3706 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the appellant's employment was unfairly terminated or constructively dismissed
No termination or constructive dismissal was established; the employer issued a warning letter as a disciplinary measure and the appellant never resigned
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.
Whether salary was payable for December 2021 to March 2022
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)
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.
Whether the appellant was entitled to overtime
Overtime awarded at Kshs. 404,000, being the amount sought less Kshs. 1,000 per month already paid above minimum wage for 70 months
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.
Whether underpayment, house allowance, week offi pay, leave and uniform dues claims were proved
All dismissed; salary paid was above the applicable Mavoko minimum wage inclusive of housing
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.
Legal principles established
#- 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
#- 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.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.Overtime awarded at Kshs. 404,000/-
- 4.Cost of the suit and interest at court rate from the judgment date
- 5.The appellant is awarded costs of the appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.