Charo v Texas Alarms (K) Limited (Cause E516 of 2025) [2026] KEMC 473 (KLR)
The bottom line
#A Mombasa court ruled a security guard resigned rather than was fired, but still awarded him Kshs. 22,260 because his employer couldn't prove leave was paid.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant resigned or was terminated
The Claimant voluntarily resigned on 6th December 2024; he was not terminated
The resignation letter was corroborated by contemporaneous documents: acknowledgment letter, clearance form, request for deposit of final dues and Certificate of Service. The Claimant gave a general denial only, did not plead fraud, forgery, coercion or duress, and produced no expert report challenging the signature. The date discrepancy in the Certificate of Service was reasonably capable of referring to the last day worked.
Whether the Claimant was underpaid
The underpayment claim of Kshs.158,360 was not proved
The computation used an erroneous 40-month period (actual service was approximately 28 months), failed to distinguish occupational categories (day guard, night guard, Crew) across periods, and relied on a pleaded fixed salary of Kshs.13,000 contradicted by payslips showing basic pay of Kshs.15,900 plus house allowance. The Court cannot substitute its own calculation for an undifferentiated one.
Whether the Claimant is entitled to unpaid house allowance
The claim was not proved and was dismissed
The payslips expressly recorded a house allowance of Kshs.2,500 per month. The Claimant did not challenge the authenticity of the payslips or provide alternative payroll records, so his assertion that his salary was exclusive of house allowance could not overcome the documentary evidence.
Whether the Claimant is entitled to accrued leave pay
The Court awarded Kshs.22,260 for 42 accrued leave days
The Respondent produced no leave application forms, schedules, registers or approval records despite the statutory duty under section 74(1)(f) of the Employment Act. The claim was limited to the 42 days pleaded (21 days per two completed years) and computed on the established basic salary of Kshs.15,900.
Whether terminal dues were paid
The Respondent failed to prove that accrued leave entitlement was settled through the cheque
Although a cheque was produced (apparently Kshs.39,141 despite both parties referring to Kshs.3,941), the Respondent provided no final dues computation, SACCO statement, deposit confirmation, bank statement showing the cheque was honoured, or discharge voucher. A cheque proves at most an intention to pay, not payment.
Service pay entitlement
No award for service pay as the Claimant was an NSSF member
Service pay was referred to but never separately quantified. Section 35(6) of the Employment Act disentitles NSSF members from service pay under section 35(5). The Claimant's NSSF provisional member statement and the NSSF deductions on the payslips confirmed membership.
Legal principles established
#- Under section 47(5) of the Employment Act, the employee bears the initial burden of proving unfair termination or wrongful dismissal, after which the employer must justify the grounds for termination
- The burden of proving payment lies on the party asserting payment was made; production of a cheque alone, without proof of delivery, deposit or honour, does not establish payment
- Where an employee specifically alleges annual leave was not taken or paid, the employer must produce its statutory leave records to disprove the allegation
- An employee seeking underpayment relief must prove the applicable occupational classification, prescribed rate, actual wage received and the resulting differential
Court orders
#- 1.Accrued leave pay of Kshs.22,260/= awarded to the Claimant
- 2.The award shall be subject to all applicable statutory deductions under section 49(2) of the Employment Act
- 3.Interest at Court rates from the date of judgment until payment in full
- 4.Each party to bear its own costs
- 5.The claim is otherwise dismissed
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court (Procedure) Rules, 2024, Rule 59
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charo v Texas Alarms (K) Limited (Cause E516 of 2025) [2026] KEMC 473 (KLR)", Case Analysis (2026). MCELRC Cause No. E516 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/473/eng@2026-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.