Nekono v Pada Security & Alarm System

4. 3. The Learned Magistrate erred in fact and in law by not appreciating and/or disregarding the Supreme Court decision in Kenfreight (EA) Limited v Benson K Nguti (Petition No. 37 of 2018) [2019] eKLR to the eect that, once a court has reached a nding that an employer has unlawfully terminated an employee’s employment, the appropriate remedy is the one provided under Section 49 of the Employment Act. 4. The Learned Magistrate erred in fact and in law in exercising her discretion to award damages in an injudicious and unfair manner, thereby leading to a manifestly erroneous decision that occasioned injustice upon the Appellant. 5. The Learned Magistrate erred in fact and in law by making a determination on the Appellant’s entitlement to damages that was not supported by law and the evidence placed on record. 6. The Learned Magistrate erred in law and in fact in failing to appreciate and/or disregarding the maxim that “Equity will not suer a wrong to be without a remedy”, particularly following her nding and declaration that the Appellant’s termination was unfair. The Appellant prays for orders that: i. This Appeal be allowed with costs to the Appellant. ii. Part of the Judgement delivered on 28th March, 2024 by the Honourable C.A. Ogweno (SRM) and the consequent Decree in Milimani MCELRC/E805/2020 be and is hereby set aside with costs to the Appellant. iii. This Honourable Court do award the Appellant compensation for unlawful/unfair termination. iv. Any other relief that this Honourable Court may deem just and t to grant in the Appellant’s favour under the circumstances. 5. The Appellant’s case before the trial court was presented through the following documents, all of which form part of the Record of Appeal: a Memorandum of Claim dated 12th September, 2020, a Verifying Adavit of even date, a Claimant’s List of Witnesses, a Claimant’s List and Bundle of Documents dated 12th September, 2020, a Claimant’s Witness Statement dated 2nd January, 2024, a Response to Response to Memorandum of Claim and Defence dated 24th November, 2022, and Claimant’s Written Submissions dated 29th January, 2024. 6. The Appellant’s case as presented across these documents is as follows. She was employed by the Respondent as a watch lady and security guard at Westlands Commercial Centre from on or about 16th February, 2016. She earned a gross monthly salary of Kenya Shillings Nine Thousand Five Hundred (Kshs. 9,500.00) that was paid through the Respondent’s agent, Tozza Plus Limited. On or about 31st July, 2020 in the middle of the COVID-19 pandemic the Respondent’s client, Ring Road Park Management Limited, terminated its security services contract with the Respondent eective 1st August, 2020. 7. The Appellant testied that she was not given any notice of this development, was not assigned to an alternative station and was not issued any communication by the Respondent in connection with the change. She was not given any notice prior to her separation from employment, was not invited to any disciplinary hearing and was not given any valid reason for the termination of her employment. Following the termination of the contract at the Westlands site, the incoming security rm, Wimbo Security Company took over and hired the Appellant directly to continue performing her duties at the same station. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1990/eng@2026-07-15 2

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8. The Appellant further testied that she attempted to contact the Respondent after 31st July, 2020. She visited the Respondent’s oces on 2nd August, 2020 but was denied entry. The Respondent did not respond to any of her communications and she was never formally called back by the Respondent or oered redeployment to another station. She thereafter led a demand letter through her advocates and, upon the Respondent’s continued silence, instituted the proceedings before the trial court. 9. In her written submissions at trial dated 29th January, 2024, the Appellant submitted that the termination of her employment was both unlawful and unfair, the Respondent having failed to comply with Sections 41, 43 and 45 of the Employment Act, 2007. She relied on the provisions of Section 49 of the Employment Act aforesaid and the decision in D.K. Njagi Marete v Teachers Service Commission [2013] eKLR to urge that employment remedies must be proportionate to the economic injuries suered and that the court has a duty to observe the principle of a fair go all round. She sought twelve (12) months’ compensation totalling Kshs. 114,000.00, unpaid leave amounting to Kshs. 33,250.00, costs of the suit and interest. 10. The Respondent’s case before the trial court was presented through a Response to Memorandum of Claim and Counter Claim dated 23rd February, 2021, a Respondent’s List of Witnesses dated 13th December, 2023, a Respondent’s Witness Statement by David Mbuthia of even date and the Respondent’s Written Submissions dated 2nd February, 2023. These documents are all contained in the Record of Appeal. 11. The Respondent’s case at trial was presented through its witness, David Mbuthia, the Appellant’s supervisor at the material time. He testied that in 2020, due to the COVID-19 pandemic, the Respondent lost its client at Westlands Commercial Centre, Ring Road Park Management Limited and that by a letter dated 21st July, 2020 the client terminated the security services contract with eect from 1st August, 2020. When Wimbo Security Company took over the contract, they engaged the Appellant directly. He testied that the Appellant owed the Respondent Kshs. 32,191.00 being the loan balance after deduction of the July 2020 salary, that she had not cleared with the company and that the Respondent claimed Kshs. 41,691.00 on its counterclaim inclusive of one month’s notice pay. 12. On cross-examination, the Respondent’s witness admitted that no show cause letter was issued to the Appellant, that no disciplinary meeting was conducted and that no invitation was issued for such a meeting and that the Respondent did not follow the law on termination of the Appellant’s employment. He maintained that the Appellant was supposed to report to the oce for redeployment but did not, and that he found her working for Wimbo Security when he went to hand over. 13. In their written submissions at trial dated 2nd February, 2023, the Respondent submitted that the Appellant eectively abandoned her employment by taking up work with a rival company, that her action was inconsistent with her status as a Respondent employee, and that she had eectively terminated the contract herself. The Respondent sought to rely on the authority of Ayub Kombe Ziro -vs- Umoja Rubber Products Limited, ELRC Appeal No. E006 of 2021 [2022] eKLR and Titus Malueo Wangereka -vs- Gurdip Singh Rupra (2023 KEELRC 625 KLR). 14. On this appeal, the Respondent led submissions on behalf of their behalf dated 3rd April, 2025. These come out thus; Foremost: the Respondent submits that the facts of the case are largely uncontested and that, on a re-evaluation of the evidence, there was nothing placed before the trial court to indicate that the Respondent terminated the Appellant’s employment. The Respondent’s case is that when the client, Ring Road Park Management Limited, terminated the security services contract, the incoming service provider, Wimbo Security Company, took over and engaged the Appellant directly. The Appellant simply continued working at the same station, changed her security guard uniform and acted as if nothing had happened. She did not notify the Respondent that she had taken up employment with https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1990/eng@2026-07-15 3

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a rival rm or that she had ceased working for it. The Respondent submits that it was the Appellant who brought the relationship to an end by her own conduct. 15. Secondly, the Respondent submits that the Appellant did not discharge the burden cast upon her by Section 47(5) of the Employment Act, 2007 to establish that an unfair termination had occurred. Relying on the authority of West Kenya Sugar Company Limited v David Mboya Chilande, ELRC Appeal No. E009 of 2023 [2024] KEELRC 2119 (KLR), the Respondent submits that the burden of proving unfair termination lies on the employee that where the employee has not discharged that burden no burden shifts to the employer and that the Appellant led no credible evidence in support of her claims including the persons she allegedly called or any documentation of untaken leave and did not issue a notice to produce documents. 16. Thirdly, the Respondent submits that the Appellant suered no loss or damage, having owed into the new employment without any break in service and being unable to be the employee of two companies simultaneously. The court took into account the fact that the claimant did not suer any loss or damages and accordingly the trial court was right to decline compensation. 17. Fourth and lastly, the Respondent relies on the authority of Ayub Kombe Ziro v Umoja Rubber Products Limited [2022] eKLR as authority that a court, having found non-compliance with Section 41 of the Employment Act, 2007 where an employee had deserted duty, may decline compensation and instead direct the employee to clear with the oce of the employer. 18. On the standard governing a rst appeal, the Respondent also relies on the authority of Hadijah Linda Cheruto Hamisi v Sarah Isorit Orodi, Milimani C.A. No. E1089 of 2023 [2025] KEHC 1802 (KLR). The Respondent urges that the justice of the case is plain, that the Appellant cannot have her cake and eat it and that the appeal ought to be dismissed with costs. 19. The issues for determination are: i. Whether the trial court erred in nding that the Appellant was not entitled to compensation following her nding of unfair, un-procedural and unlawful termination. ii. What relief if any, is the Appellant entitled to. iii. Who bears the costs of this appeal. 20. The 1st issue for determination is whether the trial court erred in nding that the Appellant was not entitled to compensation following her nding of unfair, un-procedural and unlawful termination. This court’s jurisdiction on rst appeal is to re-evaluate the evidence on record and arrive at its own independent conclusions, while remaining conscious that it did not have the advantage of observing the demeanour of witnesses at trial. Interference is warranted where the trial court misdirected itself in law, misapprehended the facts, took irrelevant considerations into account, failed to consider relevant matters, or reached a decision that is plainly wrong. This is as provided in the authority of Selle and Another v Associated Motor Boat Co. Ltd [1968] EA 123. This is the standard on which both parties are agreed and on which the Respondent itself relies in citing Hamisi v Orodi, supra. 21. The trial court’s nding on liability is unequivocal. The trial court expressly declared that the termination of the Appellant’s employment by the Respondent was “unfair, un-procedural and unlawful.” The basis of that nding is clearly stated in the judgment: the Respondent failed to observe the procedural requirements of Section 41 of the Employment Act, 2007 in that no notice was issued to the Appellant, no disciplinary hearing was conducted and no valid reason for termination was communicated to the Appellant before the separation. These ndings were supported by the admission of the Respondent’s own witness under cross-examination. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1990/eng@2026-07-15 4

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22. Before turning to the substance of the appeal, it is necessary to address two threshold contentions advanced in the Respondent’s submissions on appeal: rst, that on a re-evaluation of the evidence there was in truth no termination by the Respondent at all, the Appellant having brought the relationship to an end herself and secondly, that the Appellant failed to discharge the burden cast on her by Section 47(5) of the Employment Act, 2007 to prove that an unfair termination occurred. 23. These contentions cannot be entertained on this appeal in the manner urged. The trial court made a positive and unequivocal nding that the termination of the Appellant’s employment was unfair, un-procedural and unlawful. The Respondent did not appeal and did not cross-appeal, against that nding. It is settled law and practice that a respondent who has not cross-appealed may support the judgment of the lower court on any ground available on the record, but may not invite the appellate court to set aside a nding made against it so as to obtain an outcome more favourable than that allowed by the lower court. The Respondent’s invitation to this court to nd that there was no termination is, in substance, an invitation to reverse the nding of unfair termination. In the absence of a cross-appeal, that nding stands and is not open to reversal at the instance of the Respondent. The live question on this appeal remains the narrow one raised by the Appellant: whether, that nding having been made, the trial court was entitled to decline any compensation. 24. The Respondent’s reliance on West Kenya Sugar Company Limited v David Mboya Chilande [2024] KEELRC 2119 (KLR) is not useful. That was a case in which the appellate court, on reevaluation, found that the claimant had not established that any unfair dismissal had occurred at all, the engagement being a casual one for a few days that was incapable of conversion to a term contract so that the Section 47(5) burden was never discharged and no burden shifted to the employer. The present case is materially dierent. Here, the trial court positively found, on evidence that included the admissions of the Respondent’s own witness under cross-examination, that an unfair and unlawful termination did occur. The question whether the Appellant discharged her burden under Section 47(5) was determined in her favour at trial and is not re-opened by a submission unsupported by a cross-appeal. 25. Having considered the record, this court notes that the Respondent’s own witness at pages 61 and 62 of the Record admitted the procedural failures under cross-examination. The Respondent’s evidence that the Appellant was supposed to report for redeployment but did not, and that she was found already working for Wimbo Security when he went to hand over, does not displace the trial court’s nding. That nding was made on the whole of the evidence before it, and the Respondent’s narrative on appeal does not demonstrate any misdirection by the trial court on the liability issue. 26. The Respondent’s reliance on the authority of Ayub Kombe Ziro v Umoja Rubber Products Limited [2022] eKLR is, with respect, misplaced. The Respondent posits that decision is authority that a court, having found non-compliance with Section 41 where an employee deserted duty, may decline compensation and merely direct the employee to clear with the employer. That is not what Ayub Kombe Ziro decided. In that case this court held that the employer had not terminated the employee; that desertion or abandonment of duty cannot of itself bring a contract of service to an end until the employer acts upon it through its disciplinary processes; and that the employment relationship accordingly subsisted. The Court ordered that, subject to the employee furnishing medical proof of recovery, the employer permits him to resume duty and made no order as to costs. There is no order in Ayub Kombe Ziro directing an employee to “clear with the oce of the employer,” and the decision does not authorise the withholding of all relief following a clear nding of unfair termination. If anything, the principle for which Ayub Kombe Ziro stands that an employer may not treat an employee’s departure as ending the contract without itself observing due process — tells against the Respondent, whose procedural failures the trial court found to be total. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1990/eng@2026-07-15 5

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27. I therefore turn to the substance of the appeal, namely the trial court’s decision, having found unfair termination, to award no compensation at all. 28. Section 49 of the Employment Act, 2007 sets out the framework of remedies available to the court upon a nding of unfair termination. Section 49(1) empowers the court to award any one or more of the following: reinstatement, re-engagement, or compensation not exceeding twelve months’ gross wages or salary. Section 49(4) then sets out the factors the court must take into account in determining the quantum of compensation. Those factors are mandatory, not discretionary. As the Court of Appeal held in Kenya Airways Limited v Aviation & Allied Workers Union Kenya [2014] eKLR, Section 49(4) prescribes mandatory considerations and a failure to engage with them in arriving at a compensation award amounts to an error of law. The same principle was armed by this Court in Kenya Broadcasting Corporation v Georey Wakio [2019] eKLR. 29. The trial court’s judgment contains no engagement with the Section 49(4) factors. There is no analysis of the Appellant’s length of service, four years and ve months, the abrupt and total procedural failure on the Respondent’s part, the Appellant’s wage level, or any of the other mandatory considerations. The sole basis for declining any award was that, because the Appellant was immediately absorbed by Wimbo Security at the same site, no loss was suered. That is also the substance of the Respondent’s third submission on this appeal. 30. That reasoning, with respect, is erroneous in two respects: First, it conates complete mitigation of economic loss with extinguishment of the statutory right to compensation. The two are not the same. Compensation under Section 49 of the Employment Act, 2007 is not solely remedial in the sense of restoring lost income. It also serves to vindicate an employee’s statutory rights and to mark the employer’s failure to comply with the procedural and substantive requirements of the law. The Supreme Court of Kenya in Kenfreight (EA) Limited v Benson K Nguti (Petition No. 37 of 2018) [2019] eKLR was categorical: once a court has reached a nding that an employer has unlawfully terminated an employee’s employment, the appropriate remedy is the one provided under Section 49 of the Employment Act, 2007. The implication of that holding is that a nding of unfair termination, properly made, triggers the Section 49 framework. The question is not whether the employee deserves to be compensated but rather what quantum the Section 49(4) factors dictate. 31. Secondly, the proposition that rapid re-employment by a rival rm at the same workstation amounts to a complete answer to a claim for statutory compensation sets a troubling precedent. On that logic, an employer operating in a context where an employee is immediately hireable by an incoming contractor incurs no liability however egregious its procedural failures. That cannot be the intent of the legislature in enacting Section 49. The Respondent’s submission that the Appellant “cannot have her cake and eat it” fundamentally misconceives the nature of Section 49 compensation, which is a statutory entitlement triggered by a nding of unfair termination, not a windfall dependent on the absence of alternative employment. 32. Neither Ayub Kombe Ziro v Umoja Rubber Products Limited, already considered above, nor Titus Malueo Wangereka v Gurdip Singh Rupra, relied on by the Respondent at trial, authorises a court, following a clear nding of unfair and unlawful termination, to award no remedy whatsoever. Each turned on its own facts. The counterclaim in this matter was dismissed at trial for want of evidence, the alleged loan was not proved and no outstanding dues were established by evidence and accordingly there is nothing meaningful for the Appellant to “clear.” The trial court’s direction to that eect has no practical content. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1990/eng@2026-07-15 6

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33. This court accordingly nds that the trial court erred in law by declining to award any compensation after making a clear nding of unfair, un-procedural and unlawful termination and by failing to engage with the mandatory Section 49(4) factors. The appeal on this issue succeeds. 34. On the 2nd issue, the reliefs to which the Appellant is entitled are assessed against the proven facts and the Section 49(4) factors. This comes out thus: On length of service, The Appellant served the Respondent from 16th February, 2016 to 31st July, 2020 — a period of approximately four (4) years and ve (5) months. This is a substantial period of continuous service. 35. On the issue of circumstances and manner of termination: The procedural failures were total. No notice was given, no disciplinary hearing was held, no valid reason was communicated and no redeployment was oered. The Respondent’s own witness admitted these failures under crossexamination. The employer’s conduct is at the serious end of procedural default. 36. On the issue of mitigation, the Appellant mitigated her loss substantially by immediately taking up employment with Wimbo Security at the same station on or about 3rd August, 2020. This is a signicant mitigating factor which operates in the Respondent’s favour and must substantially reduce the compensation below the maximum available. 37. Gross salary at termination was Kshs. 9,500.00 per month, as conrmed by the Appellant’s bank statements in the record. 38 The maximum compensation available under Section 49(1)(c) is twelve (12) months’ gross wages, amounting to Kshs. 114,000.00. Taking into account the Appellant’s substantial period of service, the gravity and totality of the procedural failures, and the signicant mitigation aorded by immediate reemployment, this court assesses compensation at three (3) months’ gross salary, being Kenya Shillings Twenty Eight Thousand Five Hundred Kshs. 28,500.00 39. On the claim for unpaid leave amounting to Kshs. 33,250.00, the trial court declined this claim on the basis that the Appellant failed to particularise the leave period not taken or to demonstrate how the sum was arrived at. The Respondent did not produce records of leave granted to or taken by the Appellant, but the Appellant equally failed to produce any documentation establishing the number of untaken leave days or the basis of computation. Annual leave under Section 28 of the Employment Act, 2007 must be specically pleaded and proved. This head of claim fails. 40. On the 3rd issue, the Appellant has substantially succeeded on the only live issue in the appeal. The Respondent opposed the appeal and was heard through its written submissions, but those submissions have not persuaded the Court. There is no reason to depart from the ordinary rule that costs follow the event. The Respondent shall bear the costs of this appeal. 41. Having considered the Record of Appeal, the evidence adduced at trial, the submissions led on behalf of both the Appellant and the Respondent, the applicable law and all matters raised herein, the appeal is partially allowed. The nding of the trial court that the Appellant is not entitled to compensation for unfair termination is hereby set aside. All other orders of the trial court, including the dismissal of the Respondent’s counterclaim stand. 42. I am therefore inclined to partially allow the appeal and order relief as follows; i. A declaration that that the termination of the Appellant’s employment by the Respondent was unfair, un-procedural and unlawful. ii. Three (3) months compensation for unfair termination of employment – Ksh9,500.00x3) ……………………………………………………Kshs. 28,500.00 https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1990/eng@2026-07-15 7

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Total of Award………………………………………………….Kshs. 28,500.00 iii. The costs of the appeal shall be borne by the Respondent. iv. The claim for unpaid leave is dismissed. v. Interest on the award shall run at court rates from the date of ling of the original suit in the trial court until payment in full. DELIVERED, DATED AND SIGNED THIS 15TH DAY OF JULY 2026. D. K. NJAGI MARETE JUDGE Appearances: Miss Nyambura holding brief for Ochieng instructed by Teddy & Company Advocates for the Appellant. Mr. Njuguna instructed by Kiarie Njuguna & Company Advocates for the Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1990/eng@2026-07-15 8

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