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ELRCPartially AllowedELRC Appeal No. E014 of 2025

Tick Security Services Limited v Mwandeto Kivelenge Nzano

Employment and Labour Relations Court
30 September 2026
7,373 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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A Kenyan court cut a security guard's award but confirmed that employers cannot quietly drop injured workers off the payroll without a fair process.

What this practically means

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Executive summary

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Tick Security Services Limited appealed against a Chief Magistrate's Court judgment awarding Mwandeto Kivelenge Nzano Kshs. 269,889 for unfair termination. The Respondent, a night guard, was knocked down by a motor vehicle within the port of Mombasa in December 2019, was paid salary up to March 2020, and never returned to work. The Appellant's case shifted between desertion (as pleaded and in its counterclaim) and expiry of an alleged three-month fixed-term contract (first raised in evidence and submissions). The Court held the two defences irreconcilable, since an employee cannot desert employment that has already ended, and parties are bound by their pleadings. On the alleged contract, the employee never signed it, only RW1 signed as witness, and its recital referenced the novel coronavirus before that virus was publicly known, indicating the document was prepared after the event. The Court found continuous service from about July 2010 under an oral contract of indefinite duration. Desertion was unproved: the employer made no documented efforts to reach an employee it knew was confined to a wheelchair. The termination was unfair both substantively and procedurally. Notice pay of Kshs. 17,412 and ten months' compensation of Kshs. 174,120 were upheld. However, the leave pay and overtime awards were set aside as continuing-injury claims filed outside the twelve-month period under section 89 of the Employment Act, the trial court having had no jurisdiction over time-barred claims. The judgment sum was varied to Kshs. 191,532, trial court orders on interest, costs and certificate of service stood, and each party bore its own costs of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Under what form of employment was the Respondent serving the Appellant at the time of separation?
  2. 2.Did the Respondent's employment come to an end by effluxion of time, by his desertion, or by termination at the instance of the Appellant?
  3. 3.If the Appellant terminated the employment, was the termination fair?
  4. 4.Were the reliefs awarded justified?

Key legal issues

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01

Form of employment: fixed-term or continuous indefinite service

Holding

The Respondent served continuously from about 1st July 2010 under an oral contract of indefinite duration; the alleged fixed-term contract was not proved.

Reasoning

The unsigned contract carried only the witness's signature, bore no employee consent as required by section 9(3), and referred to the novel coronavirus before its emergence, indicating post-event preparation. The disciplinary file, uninterrupted salary credits and absence of completion certificates all pointed to continuous service.

p. 24
02

Irreconcilable defences: effluxion of time versus desertion

Holding

The two defences cannot co-exist; being bound by pleadings, the Appellant could not succeed on effluxion of time when it had pleaded desertion.

Reasoning

Effluxion ends the contract by its own terms without any party's act, while desertion presupposes a subsisting contract. Payment of salary beyond the alleged expiry date and the counterclaim for notice pay confirmed a continuing contract. Parties are bound by their pleadings and a court cannot decide on an unpleaded basis.

p. 17
03

Proof of desertion

Holding

Desertion was not proved; the employer made no documented efforts to reach the employee, who was known to be hospitalised and in a wheelchair.

Reasoning

The assertion about contacting referees was bare, unnamed and undated; no call logs, letters or notice to resume were produced and the labour officer was not notified. The employer knew the employee's whereabouts and condition, so a night guard in a wheelchair was not an absconder but an employee unable to work.

p. 28
04

Fairness of termination

Holding

The termination lacked both substantive justification and procedural fairness under sections 41, 43 and 45.

Reasoning

Having failed to prove desertion, the employer proved no valid reason. Its belief that no hearing is needed for desertion was mistaken law; a deserting employee does not dismiss himself and section 41 process, starting with efforts to reach him, remains mandatory.

p. 33
05

Limitation of leave and overtime claims

Holding

Leave and overtime are continuing-injury claims; the twelve months under section 89 ran from cessation of employment on 30th April 2020, so the July 2022 suit was time-barred.

Reasoning

Following The German School Society v Ohany, a continuing injury arises from breach of a continuing obligation; leave denial and unpaid overtime persisted throughout employment and ceased at its end. Limitation goes to jurisdiction and must be determined whenever raised.

p. 38

Legal principles established

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  • Effluxion of time and desertion are irreconcilable bases for the end of employment; an employer cannot plead desertion and then rely on expiry of a fixed-term contract.
  • Where the employer fails to produce a written contract signed or consented to by the employee, the burden of proving the alleged term falls on the employer under section 10(7).
  • An employer asserting desertion must demonstrate reasonable efforts to reach the employee; a bare assertion is insufficient.
  • Leave and overtime claims are continuing injuries; under section 89 the twelve-month limitation period runs from the cessation of the injury, at latest the end of employment.

Court orders

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  1. 1.The appeal is allowed in part.
  2. 2.The awards of Kshs. 26,118 for leave pay and Kshs. 52,239 for overtime are set aside and the claims for leave pay and overtime dismissed as time-barred under section 89 of the Employment Act.
  3. 3.The findings that the Respondent's employment was unfairly terminated, and the awards of Kshs. 17,412 notice pay and Kshs. 174,120 compensation under section 49(1)(c), are upheld; the judgment sum is varied from Kshs. 269,889 to Kshs. 191,532.
  4. 4.The orders of the trial court on interest, the costs of the suit and the certificate of service are undisturbed.
  5. 5.Each party shall bear its own costs of this appeal.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Chief Magistrate's Court at Mombasa (CMELRC)
Mombasa CMELRC No. E416 of 2022
Jurisdiction invoked
First appeal from the subordinate court under the Employment and Labour Relations Court Act; appeal against judgment in Mombasa CMELRC No. E416 of 2022

Relief refused

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Appellant's challenge to the awards of notice pay and ten months' compensation

Findings on unfair termination and the reliefs were upheld; the effluxion-of-time premise was rejected.

p. 39

Respondent's leave pay and overtime awards

Continuing-injury claims filed more than twelve months after cessation of employment, hence time-barred under section 89.

p. 38

Costs

Each party shall bear its own costs of this appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Effluxion of time means that the contract of service came to an end by its own terms on the date it stipulated, by the mere passage of time and without any act of either party.
p. 17Nature of effluxion of time
An employee cannot desert employment that has already ended.
p. 17Incompatibility of desertion and expiry defences
A document that the employee never signed is, at most, an offer that was never shown to have been accepted.
p. 20Unsigned contracts and section 10(7) burden
A night guard confined to a wheelchair is not an employee who has absconded. He is an employee who is unable to work.
p. 28Desertion versus incapacity
The claims for leave pay and overtime were therefore time-barred. The trial court had no jurisdiction to entertain them
p. 38Section 89 continuing injury and jurisdiction
The awards of Kshs. 26,118 for leave pay and Kshs. 52,239 for overtime made in the judgment of the trial court delivered on 3rd February 2025 in Mombasa CMELRC No. E416 of 2022 are set aside, and the claims for leave pay and overtime are dismissed as time-barred under section 89 of the Employment Act.
p. 39Final orders - disposition
The judgment sum is accordingly varied from Kshs. 269,889 to Kshs. 191,532.
p. 40Final orders - variation of judgment sum
Each party shall bear its own costs of this appeal.
p. 40Costs of appeal

Issues in the judgment

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minor

Judgment dated 30th September 2026, more than a year and a half after the memorandum of appeal of 13th February 2025; delivery date appears inconsistent with the appeal timeline.

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, "Tick Security Services Limited v Mwandeto Kivelenge Nzano", Case Analysis (2026). ELRC Appeal No. E014 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2743/eng@2026-09-30

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