Bernard Mogusu Gwaro v Rommy Security Services
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the appellant's employment was unfairly terminated or whether he deserted duty
Trial court's finding of desertion upheld; the respondent proved on a balance of probabilities that the appellant disappeared from work and was unreachable
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.
Whether the trial court erred in failing to determine terminal dues claims
Yes - failure to determine the terminal dues claim was an error and abdication of duty; the appellate court proceeded to determine them itself
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.
Underpayment claim
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
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.
Leave claim
Awarded as sought (Kshs. 24,459.96) because the respondent did not contest it and produced no records proving leave was taken
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.
House allowance
Awarded at 15% of basic salary per section 31 of the Employment Act for 26 months and 9 days, Kshs. 59,735
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.
Overtime claim
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
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.
Certificate of service
Entitled as a matter of right under section 51(1) of the Employment Act; to be issued within 30 days
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.
Legal principles established
#- 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
#- 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.Underpayment of basic salary awarded at Kshs. 3,733.30
- 3.Housing allowance awarded at Kshs. 59,735
- 4.Payment of leave in lieu awarded at Kshs. 24,459.96
- 5.Overtime awarded at Kshs. 199,458
- 6.Certificate of service to be issued under section 51 of the Employment Act through the Advocates Office in 30 days
- 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.Costs and interest on the terminal dues award
- 9.½ costs of the appeal awarded to the Appellant
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.