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ELRCPartially AllowedELRC Appeal No. E021 of 2024

Bernard Mogusu Gwaro v Rommy Security Services

Employment and Labour Relations Court of Kenya
18 September 2026
7,312 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 who deserted his job still won Kshs. 272,244 in unpaid dues because his employer kept poor records.

What this practically means

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Executive summary

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The appellant, a night security guard, appealed against the judgment and decree of Hon. R.A. Oganyo (CM) delivered on 11th December 2024 in Kajiado MCELRC No. E040 of 2022, which had dismissed both his claim for Kshs. 810,419.425 in terminal dues and the respondent's counterclaim, with each party bearing their own costs. He contended the magistrate erred in disregarding his evidence, failing to determine heads of claim (underpayment, leave, severance, holidays, overtime, SACCO remittances, certificate of service), and in placing on him the burden of disproving desertion. Keli J, sitting as a first appellate court, applied the Selle v Associated Motor Boat Co retrial standard and framed two issues: whether the trial court erred in failing to find unfair termination, and whether it erred on relief. On the first issue, the court upheld the finding of desertion, holding the respondent proved on a balance of probabilities that the appellant disappeared from work after a spare tyre went missing and was unreachable; no unfair termination was found. On the second issue, the court agreed with Kiruthu v Skyways Security Services that the magistrate's failure to determine the terminal dues claims was an error and abdication of duty, and proceeded to determine them itself. It awarded underpayment of Kshs. 3,733.30 (only the Kshs. 141.95 monthly shortfall against the minimum wage, the Kshs. 15,000 payroll being unimpugned), house allowance of Kshs. 59,735, leave of Kshs. 24,459.96, and overtime of Kshs. 199,458; it declined the holidays-worked claim for lack of particularization and ordered a certificate of service. The counterclaim for one month's notice pay (Kshs. 15,141.95) was allowed but set off, leaving Kshs. 272,244.31 payable to the claimant. The appeal was allowed partially, with ½ costs to the appellant and a 30-day stay granted.

Key legal issues

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01

Whether the appellant's employment was unfairly terminated or whether he deserted duty

Holding

Trial court's finding of desertion upheld; the respondent proved on a balance of probabilities that the appellant disappeared from work and was unreachable

Reasoning

The court re-evaluated the evidence and found the trial court's conclusion that the appellant disappeared and was unreachable was supported by the evidence. The respondent's evidence of reaching out in vain met the desertion threshold in the authority relied on by the appellant. The appellant failed to prove dismissal without notice.

p. 15
02

Whether the trial court erred in failing to determine terminal dues claims

Holding

Yes - failure to determine the terminal dues claim was an error and abdication of duty; the appellate court proceeded to determine them itself

Reasoning

Relying on Kiruthu v Skyways Security Services Limited, the court found the trial magistrate failed to make findings on pleaded and quantified heads of terminal dues despite evidence tendered, amounting to failure to exercise jurisdiction on material issues, and determined them afresh.

p. 17
03

Underpayment claim

Holding

Only Kshs. 141.95 per month underpayment proved against the unimpugned payroll showing gross salary of Kshs. 15,000; awarded for 26 months and 9 days as Kshs. 3,733.30

Reasoning

The respondent's payroll under section 74 of the Employment Act showed gross salary of Kshs. 15,000 and was not impugned; it was corroborated by DW2. Bank credits are net of deductions and cannot found an underpayment claim. The shortfall against the minimum wage was only Kshs. 141.95 monthly.

p. 20
04

Leave claim

Holding

Awarded as sought (Kshs. 24,459.96) because the respondent did not contest it and produced no records proving leave was taken

Reasoning

The respondent produced no employment contract or records proving the statutory leave was granted. Had a contract under section 28(4) limiting the claim to 18 months been produced it would have applied; absent such records the 21 statutory days leave was awarded as claimed.

p. 22
05

House allowance

Holding

Awarded at 15% of basic salary per section 31 of the Employment Act for 26 months and 9 days, Kshs. 59,735

Reasoning

House allowance was not reflected in the payroll and no pay slip was produced showing consolidation of pay; section 31 entitles an employee to housing or a housing allowance at 15% of monthly basic salary, so the arrears were computed accordingly.

p. 22
06

Overtime claim

Holding

Allowed at Kshs. 199,458 for 26 months and 9 days; the respondent's witnesses admitted overtime was worked but produced no evidence of payment

Reasoning

The respondent's witnesses confirmed the appellant worked 6pm to 6am, exceeding the 52 hours per week under the Regulation of Wages (Protective Security Services) Order, 1998, and alleged overtime was paid without adducing evidence; the admission supported the claim computed at 1.5 times the hourly rate.

p. 24
07

Certificate of service

Holding

Entitled as a matter of right under section 51(1) of the Employment Act; to be issued within 30 days

Reasoning

Section 51(1) obliges an employer to issue a certificate of service upon termination unless employment lasted less than four consecutive weeks. The trial magistrate had dismissed the entire claim without considering this head; the appellate court held the entitlement arises as of right.

p. 25

Legal principles established

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  • A first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions while making allowance for not having seen or heard the witnesses
  • An employer alleging desertion must prove efforts made to reach the employee and put them on notice that termination is under consideration
  • A trial court's failure to determine pleaded heads of claim is an error and abdication of duty
  • Salary received at bank is net of deductions and cannot be the basis of an underpayment claim where gross payroll is unimpugned

Court orders

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  1. 1.The Judgment and Decree of the Hon. R.A. Oganyo (CM) delivered on 11th December 2024 in Kajiado MCELRC No. E040 of 2022 is set aside and substituted with judgment for the claimant for terminal dues
  2. 2.Underpayment of basic salary awarded at Kshs. 3,733.30
  3. 3.Housing allowance awarded at Kshs. 59,735
  4. 4.Payment of leave in lieu awarded at Kshs. 24,459.96
  5. 5.Overtime awarded at Kshs. 199,458
  6. 6.Certificate of service to be issued under section 51 of the Employment Act through the Advocates Office in 30 days
  7. 7.Respondent's counterclaim of notice payment allowed for 1 month's salary, Kshs. 15,141.95, set off from the award, making the total payable to the claimant Kshs. 272,244.31
  8. 8.Costs and interest on the terminal dues award
  9. 9.½ costs of the appeal awarded to the Appellant
  10. 10.30 days stay of execution granted (not opposed)
On appeal from
Kajiado MCELRC (Magistrates' Court)
Kajiado MCELRC No. E040 of 2022
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's judgment and decree in an employment claim

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, "Bernard Mogusu Gwaro v Rommy Security Services", Case Analysis (2026). ELRC Appeal No. E021 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2474/eng@2026-09-18

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