Musyoki v Atisco Security Company Ltd (Cause E570 of 2024) [2026] KEMC 445 (KLR)
The bottom line
#A Mombasa court awarded a security guard over Kshs.478,000 because agreeing to a lower salary cannot override Kenya's statutory minimum wage.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant resigned or deserted duty
The evidence on how employment ended is inconclusive: resignation was not proved as communicated, but desertion was also not established.
The burden of proving resignation lay on the Claimant; the unsigned, unacknowledged letter and absence of the guard or telephone records did not establish delivery. Conversely, desertion requires proof of intention not to return and the Respondent produced no demand to resume duty, show-cause letter, or disciplinary proceedings under section 41. Neither version was wholly proved.
Underpayments below the statutory minimum wage
Claim proved; the agreed contractual salary of Kshs.7,000 could not override the prescribed minimum wage for a night watchman.
Although courts should not rewrite freely negotiated contracts, the Employment Act and Labour Institutions Act set mandatory minimum standards that cannot be waived by contract. Commercial convenience and third-party contract values cannot justify payment below the Wage Order minimum. The Respondent produced no Wage Order showing compliance, and the Claimant's pleaded computation was adopted.
House allowance
Claim succeeded at 15% of basic salary for 27 months; the limitation objection failed because suit was filed within twelve months of cessation.
Section 31 of the Employment Act obliges the employer to provide housing or pay house allowance. The Respondent did not show housing was provided or that the salary was expressly consolidated to include house allowance. The suit, filed 3rd September 2024, was within twelve months of the 8th November 2023 cessation, so section 90 did not defeat the claim.
Accrued annual leave
Award limited to two completed leave years within the three-year limitation period because the Respondent failed to produce complete leave records.
Section 74 places the burden of maintaining employment records, including leave records, on the employer. The attendance registers covered limited periods and RW1 admitted no 2023 leave record existed. Incomplete records meant the uncertainty operated against the Respondent, but recovery was confined to the statutory limitation period.
Service pay
Claim succeeded; the section 35(6) exclusion was not established because no proof of pension/NSSF membership was produced.
The Respondent asserted the Claimant belonged to a pension scheme but produced no NSSF statements, membership records or remittance schedules. Mere pleading is not evidence; the evidential burden of proving the statutory exclusion lay on the employer and was not discharged.
Damages for unfair labour practices
Declined; no termination by the employer was proved and compensation under section 49 presupposes unfair termination by the employer.
Compensation under section 49 is available where unfair termination contrary to sections 41, 43 and 45 is established. The Court found the employment simply ceased without dismissal, and the Claimant's grievance related to unpaid statutory benefits, which does not by itself justify compensation for unfair termination.
Certificate of Service
Granted; the obligation under section 51 is mandatory regardless of the mode of cessation.
Section 51 imposes a mandatory duty on every employer to issue a Certificate of Service unless exempted by statute. The duty does not depend on whether employment ended by resignation, desertion or expiry of contract, so the Respondent's argument that the Claimant disappeared could not stand.
Legal principles established
#- An employee cannot contract out of the statutory minimum wage; prescribed minimum wages become mandatory terms implied into every employment contract.
- Desertion requires proof of deliberate abandonment with intention not to return, and the employer must show reasonable attempts to contact the absent employee.
- The employer bears the statutory evidential burden of keeping leave records; where records are incomplete, uncertainty operates against the employer.
- An employer alleging exclusion from service pay under section 35(6) must prove membership of the pension scheme; mere pleading is not evidence.
- The duty to issue a Certificate of Service is mandatory and independent of the mode of cessation of employment.
Court orders
#- 1.Judgment entered in favour of the Claimant for underpayments of Kshs. 425,337.55
- 2.House allowance of Kshs. 28,350.00 awarded
- 3.Leave pay of Kshs. 11,307.66 awarded
- 4.Service pay of Kshs. 14,000.00 awarded (Total Award Kshs. 478,995.21)
- 5.The prayer for damages for unfair termination and unfair labour practices declined
- 6.Respondent to issue the Claimant with a Certificate of Service within thirty (30) days from the date of judgment
- 7.Monetary awards to attract interest at court rates from the date of judgment until payment in full
- 8.Claimant to have the costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations jurisdiction of the Magistrates Court (Employment Act claims as MCELRC cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musyoki v Atisco Security Company Ltd (Cause E570 of 2024) [2026] KEMC 445 (KLR)", Case Analysis (2026). MCELRC Cause No. E570 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/445/eng@2026-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.