Bernard Mogusu Gwaro v Rommy Security Services

GROUNDS OF THE APPEAL 2. The Honourable Magistrate erred in law and in facts in dismissing the Claimant’s claim in entirety in disregard of the evidence on record. 3. The Honourable Magistrate erred in law and in facts in failing to determine the prayers sought in regards to underpayments, leave unattended and unpaid, severance pay, holidays worked, overtime worked, SACCO remittance and a certificate of service. 4. The Honourable Magistrate erred in law and fact in placing burden of proof on desertion pleaded by the respondent upon the Claimant. 5. The Honourable Magistrate erred in law and in facts in failing to appreciate the claimant’s evidence on record and the subsequent dismissal of the claimant’s claim. Background to the appeal 6. The Claimant/Appellant filed a claim against the Respondent vide an amended memorandum of claim dated 24th July 2024 seeking the following orders: - a) The sum of Kshs. 810,419.425 as particularized in paragraph 10 of the claim. b) Costs of this suit. c) Interest in (i) and (ii) above from the date of filing this suit till payment in full. d) Certificate of Service. e) Any other relief the court may deem just. J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 4 P a g e 2 | 27

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(pages 113-116 of Appellant’s ROA dated 3rd June 2026) 14. Alongside the claim, the Claimant/Appellant filed his list of witnesses dated 7th December 2022, witness statement dated 8 th December 2022, list of documents dated 7th December 2022 with the bundle attached, and further list of documents dated 24th July 2024 with the bundle attached (pages 117-133, and 139-153 of ROA). 15. The claim was opposed by the Respondent who entered appearance and filed a memorandum of response and counterclaim dated 20th February 2023 (pages 94-96 of ROA). The Respondent sought the following orders in the counterclaim: a) One month’s salary in lieu of notice being Kshs. 15,000/b) Kshs. 21,000/- being the amount of money paid by the Respondent to replace the spare wheel stolen by the Claimant. c) Interest on a) and b) above at court rates. d) Costs of the counterclaim. 16. In support of their response and counterclaim, the Respondent also filed a witness statement of ZACHARIAH OKEMWA dated 27th March 2023; witness statement of JACOB OCHIENG dated 23 rd January 2024; and witness statement of PAUL KIMANTHI dated 27th March 2023. Additionally, they filed a list and bundle of documents of even date (pages 97-112 of ROA). J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 4 P a g e 3 | 27

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17. The Claimant/Appellant’s case was heard on 19 th October 2023 with the Claimant testifying. He adopted his filed witness statement and produced his documents as exhibits. He was cross-examined by counsel for the Respondent, Mr. Juma (pages 8-11 of ROA). 18. The Respondent’s case was heard on 27th August 2024 whereby one JACOB OCHIENG testified as DW1, and PAUL KIMATHI MUNGERIA testified as DW2, on behalf of the Respondent. Both witnesses adopted their filed witness statements, DW2 produced the Respondent’s documents as exhibits, and they were cross-examined by counsel for the Claimant/Appellant, Mr. Waigwe (pages 14-22 of ROA). 19. The court delivered its Judgment on 11 th December 2024 dismissing the Claimant/Appellant’s suit as well as the Respondent’s counterclaim, with an order that each party bears their own costs (judgment at pages 26-28 of ROA). DETERMINATION 20. The appeal was canvassed through written submissions. Both parties filed. Issues for determination 21. In his submissions dated 27th June 2026, the Appellant identified the following issues for determination: J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 4 P a g e 4 | 27

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i. Whether the Honourable Court erred in law and fact in its decision contained in its Judgement. ii. Whether the Appeal has merit. iii. Who should be condemned to pay costs of the Appeal. 22. Con versely, the Respondent identified the following issues in their submissions dated 30th July 2026: i. Whether the appeal is merited or not. ii. Whether or not the Appellant is entitled to reliefs sought in the appeal. 23. The court, upon perusal of the grounds of appeal, having taken into consideration the written submissions by the parties, was of the considered opinion that the issues for determination in the appeal were :a. Whether the trial court erred in fact and law in failing to find unfair termination. b. Whether the trial court erred in fact and law in its decision on relief sought. 24. This being a first appellate court, it was held in Selle v Associated Motor Boat Co. [1968] EA 123 that:J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 4 P a g e 5 | 27

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“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.” Whether the trial court erred in fact and law in failing to find unfair termination 25. The relevant grounds of appeal under the issue were – a) The Honourable Magistrate erred in law and in facts in dismissing the Claimant’s claim in entirety in disregard of the evidence on record. b) The Honourable Magistrate erred in law and fact in placing burden of proof on desertion pleaded by the respondent upon the Claimant. c) The Honourable Magistrate erred in law and in facts in failing to appreciate the claimant’s evidence on record and the subsequent dismissal of the claimant’s claim.’ J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 4 P a g e 6 | 27

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Appellant’s submissions 26. The appellant merged grounds a, c and d of the memorandum of appeal dated 19th December 2024 and proceeded to submit that the Appellant led clear evidence of his employment as a night guard, the abrupt termination without notice or reason, and the failure by the Respondent to pay terminal dues. The appellant stated that a Supervisor named Jacob sent him away. The said Jacob, in his witness statement, paragraph 7 at Page 98 of the record of appeal, 20th line, states that the appellant absconded duty on the basis of a lost and/or stolen tyre. Similarly, RW2 states that the appellant deserted from his duties due to a lost and/or stolen tyre; see page 99 of the record of appeal, 30th line. That the respondent in its response to the statement of claim dated 20th February 2023 and at page 94 to 96 of the record of appeal alleged that the appellant absconded duty and, in the counterclaim, sought a month’s notice pay on an allegation of desertion. 27. The appellant referred to the trial court in its judgment to wit“The claimant was not tried and found to have stolen the same. It was alleged that there was a CCTV camera footage but no one testified to have seen the claimant steal the tire. I equally find that this claim wasn’t proved and consequently dismiss the same”. 28. The appellant proceeded to submit that If no evidence was called to prove that the claimant stole the alleged tire how then did the Court conclude that the appellant absconded duty, and proceeded to state that the respondent’s J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 4 P a g e 7 | 27

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witness corroborated each other thus such conclusion, see page 4 of the trial Court’s judgment at page- ‘ … the absconding a basis of the stolen tire.’ 29. The appellant proceeded to submit from the foregoing, that the Court erred in shifting the burden of prove unto the appellant in utter disregard of the principles pertaining the issue of prove of desertion, where it has been held in litany of authorities that the employer has the duty to prove an allegation of desertion and the steps the said employer took. Further to the foregoing, the claimant avers that it is Jacob who asked him not to report. DW2 confirms that they called the appellant at 1800HRS, see DW2 Paul Kimathi witness statement at Page 99 of the record of appeal. This was almost 12 hours after the alleged incident of theft was reported, it has not been explained why it took all this time to call the appellant or whether there were other calls during the day thus directing the appellant not to go to work. The number that called the appellant or the appellant number that was used to call him have not been provided neither any evidence led to show that indeed there was a call made and failed to receive. On the issue of desertion as alleged by the respondent this Honourable Court has stated in Catch Security Links Limited v Mboya (Appeal E019 of 2025) [2026] KEELRC 344 (KLR) (6 February 2026) (Judgment) Neutral citation: [2026] KEELRC 344 (KLR) at page 8 and 9 of the list and bundle of authorities, while quoting with authority the cases in William Gituma Gateere v RAA Limited [2020] KEELRC J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 4 P a g e 8 | 27

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793 (KLR) it was held that Further in the case of Stanley Omwoyo Onchweri v Board of Management Nakuru YMCA Secondary School [2015] eKLR, the court held that – For the benefit of litigants, the Court wishes to observe that an employer who advances desertion as a ground must be alert to the legal prerequisites to prove desertion. And desertion is not the same as absence without permission or leave, which occurs when the employee has an intention to return to work. Desertion can only take place where an employee leaves employment with the intention of not returning or formulating such intention not to return after leaving. Such intention may be demonstrated by showing absence of communication from the 6 employee, duration of absence, impact of the absence and nature of employee’s duties. The employer must also demonstrate that it made attempts to reach out to the employee to establish his whereabouts, making reasonable inquiries as to the absence (post, email, phone calls, colleagues, neighbours or family members), issuance of ultimatums to the employee to resume duty and the like My lady, the respondent through its witnesses RW1 and RW2 alleges to have called the appellant no documentary evidence was called to indeed show that such attempts were made. Such evidence we submit with the advance in communication technology could have been easily obtained from Safaricom or Airtel and mere statements do not suffice in the instance. Consequently, we submit that the trial court erred in concluding that the appellant absconded duty. In addition, it is trite law that the burden of desertion or absconding duty lay with the respondent and not the Appellant as the trial Court found in its judgment that the appellant/claimant failed to J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 4 P a g e 9 | 27

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prove that he did not abscond duty and as held in Catch Security Links Limited SUPRA had this to say on the issue of desertion – “Desertion of duty is a grave administrative offence, which if proved, would render an employee liable to summary dismissal. It is however not enough for an employer to simply state that an employee has deserted duty. The law is that an employer alleging desertion against an employee must show efforts made towards reaching out to the employee and putting them on notice that termination of employment on this ground is under consideration (see Evans Ochieng Oluoch v Njimia Pharmaceuticals Limited [2016] eKLR)”. 30. On the part of the appellant, in the lower Court he relied in Richard Maingi Vs Wells Fargo Limited {2017} eKLR where similar position was held in our submissions. See page 41 and 47 to 49 of the record of appeal. Your Ladyship, the Appellant proved his employment and the circumstances of termination on a balance of probabilities. The Respondent failed to rebut the evidence with credible documentary evidence but instead pleaded desertion and theft of a spare tire but failed to prove these allegations. No CCTV footage was produced, no disciplinary hearing was conducted, and no Notice to Show Cause was issued to the Appellant or attempts thereof shown. In the case of Ruth Nyansuguta –vs- Conference Caters Ltd [2016] eKLR at page 14 of the list and bundle of authorities and herewith attached the Honourable Court observed: “Under section 45 of the Act, termination of Employment of an employee is unfair if the employer fails to prove that it was grounded on a valid reason and that a fair procedure was followed.... Consequently, I J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 4 P a g e 10 | 27

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proceed to hold that failure to prove a valid reason for the dismissal and that fair procedure was followed before dismissing the claimant, has rendered the dismissal of the claimant on 2.12.2015 unfair, wrongful and unlawful within the meaning of Section 36 and 45 of the Employment Act.” Similarly, in Naomi Wangari Kung’u -vs- Board of Governors S.C.L.P Samaj School (2022) eKLR, the Court held that an employer must give a Notice to Show Cause and an opportunity to be heard. The Respondent failed to do so. Consequently, we urge the Honourable Court to a finding that there was unlawful termination and proceeds to award damages sought in paragraph 10 being one month notice at Kshs. 15,141. 95 and maximum compensation for the unlawful termination at Kshs. 181,703.40. Respondent’s submissions 31. Conversely, the respondent merged all the grounds of appeal and addressed them as one. That Section 43 read together with section 45(2) (a) and (b) of the Employment Act obligates employers to prove the reasons for the termination of employment of their employees and to prove that such reasons were valid and fair. Section 47(5)of the same act requires the employer to justify the grounds of termination. 35.The Appellant claims that the Respondent terminated his employment however there is no letter of termination of employment to justify that indeed his employment was terminated by the Respondent. The Respondent denies terminating the Appellant’s employment and therefore the onus was on the Appellant to justify and prove that on a balance of probability that indeed his employment J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 4 P a g e 11 | 27

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was terminated. The Appellant in his evidence and pleadings never brought any iota of evidence to confirm the termination of his employment. On the other hand, the Appellant in his testimony alluded to having been constructively dismissed by being told to go home and he would be called back. This left the Court in Limbo as to whether the Appellant was constructively dismissed as per his oral testimony or his employment was terminated as per his pleadings which are totally different. 32. The respondent submitted that the evidence tendered by the Respondent was to the effect that the Appellant absconded duty and never returned to his work station. It was quite clear that the Appellant was at work on the 9th of May 2022 as from 6:00pm and worked through that night and the following morning after his departure a spare tyre was reported missing and from that day the Appellant never reported to work. This position was confirmed by RW1 and corroborated by RW2 who was the guard working with the Appellant on night duties at Besco Services Limited. That indeed the appellant was involved in the theft of the spare wheel and decided to quit employment and therefore never returned to his place of work. The Respondent through its officers tried to reach out to him through calls but he ignored and eventually switched off his phone and the next time the Respondent heard of the Appellant was when the Respondent was served with summons to enter appearance and pleadings for the claim at the lower court. J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 4 P a g e 12 | 27

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33. The Respondent submitted that it tried all means and efforts to reach the Appellant on phone but he declined to pick calls from RW1 and RW2. He probably was guilty as regards the theft of the spare tyre and he eventually switched off his phone. It is our submission that the Claimant deserted duty and all efforts to reach him proved futile. That suspiciously the Appellant in his testimony alludes that he was told to go home and he would be called back and this was on the 9th of May 2022. He claims that he was told so because of the missing spare wheel. The credibility of his evidence is in question. The spare wheel was reported missing on the morning of 10th May 2022. This exposes the Appellant as disingenuous. How would he be told to go home he would be called back because of the loss of a spare tyre when the spare tyre had not been reported missing or lost by that date? The Appellant failed to discharge the burden of proving that the Respondent terminated his employment and therefore the burden of the Respondent proving that the termination of the Claimant’s employment was fair and justified as required by sections 41, 43 and 45 of the Employment Act 2007 does not arise. Having failed to discharge this legal burden, there was only one conclusion that the Appellant deserted duty. To this regard, there was no dismissal or termination of employment of the Claimant and thus, the Appellant would not have been accorded due process as he had already absconded and was nowhere to be taken through any disciplinary and due process as he had deserted duty. The respondent urged the court to be persuaded by the above reasoning and the provisions of the law and that the Appellant deserted duty and that the J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 4 P a g e 13 | 27

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Appellant’s employment was never terminated and neither was he dismissed from employment. Re-evaluation of evidence and decision on issue 1. 34. In the amended memorandum of claim the appellant stated that he was employed as a night security guard, a fact not in dispute. That he was unceremoniously, unlawfully and illegally dismissed in May 2022(no specific date). The appellant stated that he reported to his normal place of employment and was informed to go home until a later date and would be contacted to resume duties. That he never heard from the respondent. 35. During the trial the appellant denied having been informed by the employer he would be contacted later. He told the court he was called on the evening of 9th May 2022 at about 5.30 pm and was told about a tyre before he was told to go home. During re-examination, the appellant told the court he was called while in the house in the evening of 9th May 2022 and told the tyre got lost. 36. Conversely, the respondent called the supervisor, Jacob, who confirmed the appellant worked on night shift and that the supervisor established the tyre was missing after the shift. He alleged to have reported the matter to police but had no evidence of the reporting. He told the court that they tried to call the appellant about the lost tyre after he did not come back. Paul Kimanthi was a co-worker. He had seen the lost tyre(spare wheel ) where the J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 4 P a g e 14 | 27

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appellant worked. He had no evidence that the appellant stole the tyre. Paul told the trial court that the appellant disappeared from work. 37. The trial court held as follows- ‘I find that the Respondents have proved their case against the Respondent and that the Claimant disappeared from work when he was informed that a tyre belonging to a vehicle where he was guarding had disappeared. I therefore find and hold that the claimant's employment wasn't terminated by the Respondent and that he simply terminated himself which action cannot be blamed on the respondent. He only needed to report and explain himself. I therefore find that the claimant has not proved his case against the Respondent and consequently dismiss the Claimant's claim.’ 38. The appellant stated he was dismissed without notice. He was unable to prove the same. The court finds that the finding of the trial court that the respondent proved that the appellant disappeared and was unreachable was based on evidence before the trial court. The court found that the respondent met the threshold of desertion, as its evidence of having reached out in vain to the appellant was proved on a balance of probabilities. That met the threshold in the decision relied on by the appellant in Catch Security Links Limited v Mboya (2026) KEELRC 344(KLR). I find no basis to temper with the decision of the trial court on this issue. J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 4 P a g e 15 | 27

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Whether the trial court erred in fact and law in its decision on relief sought 39. The appellant, besides the termination claim, sought terminal dues for severance pay, underpayment, leave, holidays, house allowance, overtime, appraisal salary, Sacco remittance and certificate of service. 40. The appellant submitted that compensation for unfair termination (damages for wrongful or unfair dismissal) is legally and distinctly separate from earned contractual/statutory terminal dues, as sought in the Amended Memorandum of Claim where he above terminal dues. That the specifically pleaded and quantified the trial Magistrate failed to make any specific findings or pronouncements on these heads of claim despite the evidence tendered. This omission amounts to a failure to exercise jurisdiction on material issues pleaded and supported by evidence. The appellant relied on decision in Kiruthu v Skyways Security Services Limited (Employment and Labour Relations Appeal E019 of 2022) [2023] KEELRC 1639 (KLR) (7 July 2023) (Judgment) Neutral citation: [2023] KEELRC 1639 (KLR) where the appellate court while faced with similar issue where the trial Court failed to address other limbs of prayers sought after finding the claimant/appellant was unable to prove unlawful termination had this to say— “In view of the foregoing finding, the appellant is not entitled to declaration that he was unfairly and unlawfully dismissed. Accordingly, he is not entitled to salary in lieu of notice and compensation for unfair termination under section 49 of the Employment Act. However as concerns the other J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 4 P a g e 16 | 27

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reliefs sought, the trial court never addressed himself to the same. That is an error and abdication of duty” 41. Also in Alubisia v Board of Management Fr Diaz Girls Secondary School (Employment and Labour Relations Cause 191 of 2018) [2025] KEELRC 423 (KLR) (13 February 2025) (Judgment) Neutral citation: [2025] KEELRC 423 (KLR) where the Court despite finding that the employee was not unfairly dismissed went forth to award other damages as sought. The appellant submitted he was entitled the terminal relief sought. 42. On perusal of the judgment of the trial court, the court found the Learned Magistrate failed to determine the claim for terminal dues. The Court found that this was an error and indeed an abdication of duty as held in Kiruthu v Skyways Security Services Limited (Employment and Labour Relations Appeal E019 of 2022) [2023] KEELRC 1639 (KLR) (7 July 2023) (Judgment) Neutral citation: [2023] KEELRC 1639 (KLR)\. 43. The court then proceeded to determine the terminal dues claims. 44. On the claim of Underpayment, the appellant submitted as follows: The minimum wage of a Night Guard under the Regulation of Wages (General) (Amendment) Order, 2018 was Kshs 15,141.95. The Appellant testified that he was earning Kshs 8,200/= per month while the Respondent alleged that the Appellant was being paid Kshs 15,000/=. In support of his claim the Appellant produced bank statements for the year 2021 and 2022 and the J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 4 P a g e 17 | 27

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Respondent on the other hand, produced a payroll for the year 2019. The Respondent’s witnesses one Jacob Ochieng and Paul Kimanthi Mugneria testified that the Appellant was being paid Kshs 15,000, see pages 16 and 20 of the record appeal 10th line which by itself was an admission that the appellant was being underpaid as the prevailing minimum wage order provided for Kshs. 15,141.95, both the witnesses proceed to state that out of Kshs. 15,000, Kshs 5,000, was paid in cash and in advance while Kshs 10,000 paid by bank see pages 15 and 20 of the record of appeal an issue the Court reiterated in its judgment at 27 of the record of appeal 10th to 20th line. As per the appellant bank statement and the respondent’s payroll at page 101 to 112 of the record of appeal, where the appellant’s name is marked with asterisk, it indicates that there was an advance of Kshs. 5,000 but this amount was contested by the appellant. The Respondent through it witnesses RW1 and RW2 proceed to state that the Kshs. 5,000 advance was paid in cash at each and every 15th day of the month and the appellant would sign for it at a book in the accountant’s office. The witnesses proceeded to state that the book where the appellant signed was at the accountant’s office and was not availed before the Honourable Court to confirm the same. See the trial Court proceedings at pages 16 and 20 of the record of appeal 10th line. From the Respondent’s payroll and the Appellant’s bank statement confirm that mostly the Appellant received Kshs 6,000 to Kshs 8,700 an issue the appellant testified that he used to receive Kshs. 8,700. being an underpay of about Kshs 6,441.95. From the foregoing, it is our submission that the Appellant was able to prove that he was being underpaid and the Respondent could not rebut the J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 4 P a g e 18 | 27

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Appellant's assertions by providing the alleged book where the Appellant signed for the advance, despite the Respondent clearly stating that the Appellant used to sign for the same. From the foregoing having worked for the respondent for 33 months that is from August 2019 to April 2022 it is in our humble submission that the Respondent owes the Appellant a sum of Kshs 212,584.35 in underpaid wages as tabulated in paragraph 10 of the amended statement of claim at page 113 to 115 of the record of appeal and that the Appellant prays that the same be awarded as prayed. 45. The appellant relied on Kathra Hussein Noor & another v Kaderdina Hajee Essak Limited [2016] KEELRC 509 (KLR) where the Court had this to say on underpayments- ‘14. The position of this Court on underpayments and arrears of salary, in relation to the statute of limitation of time, was expressed in Industrial Court at Nairobi, Cause Number 1813 of 2011 between David Wanjau Muhoro v. Ol Pajeta Ranching Limited [2014] e-KLR: where the salary of an Employee remains in arrears, or remains underpaid, recovery of the arrears or the underpayments, is not to be defeated by limitation under Section 90 of the Employment Act; all accrued benefits must be paid to the Employee on termination; arrears of salary and underpayments of salary involve a default of a continuing nature by the Employer, and time would only start running from the date of cessation of the continuous default; every month there is a default, the time for accrual of the cause of action resets with regard to the cumulative obligations; and so long as the whole Claim is not time-barred, there is no reason to bar claims for arrears of salary, salary J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 4 P a g e 19 | 27

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discrimination and underpayments, occurring during the period in employment. The underpayments to the Claimant were carried over from the year 2010. Every time the correct rate was not applied, the accrual date reset. At the time of termination there were underpayments, accrued from 2010”. 46. The respondent at trial produced the payroll which indicated gross salary of Kshs. 15,000. I find that the payroll falls under the record of the employer under section 74 of the Employment Act. The said payroll was not impugned. The payment of Kshs. 15,000 was corroborated by DW2 who was a co- worker. The salary received at bank is usually net of deductions. It cannot be the basis of underpayment as claimed. The court held the underpayment was only with respect to Kshs. 141.95, which is awarded for the period of employment May 2019 to 9th May 2022 when the appellant illegally terminated the employment by desertion. Thus 141.95x 26 months and 9 days thus Kshs. 3,733.30. 47. The claim for payment on unpaid or unspent leave days -The Appellant stated that he was not granted leave during his Employment period and placed a claim of Ksh. 24,459.96 as leave allowance for the two years. The Respondent failed to produce any evidence and as per Section 74 (10)(3) (a) (i) of the Employment Act 2007, the employer being custodian of employment records was duty bound to proof that the Appellant had spent the leave days during his employment. the appellant submitted that that the mere fact the appellant pleaded the same, the burden shifted to the employer to prove J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 4 P a g e 20 | 27

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otherwise which was not the case herein as the respondent’s witness RW1 only stated that he spent the leave days without substantiating with proper evidence. Failure on the part of the respondent to prove that indeed the Appellant spent his leave days and or paid only confirms the latter’s claim on leave is merited. It is thus in our humble submission that the trial Magistrate erred in law by failing to grant the Appellant what was owed to him in leave allowance. 48. The appellant in the trial Court relied in James Mchovoti Nalisi v Eclipse International Limited [2019] eKLR at page 31 of the list and bundle of authorities herewith attached where a claim for leave was found to be merited and the Court had this to say- ‘The Court would only be inclined to refuse the prayer for unpaid leave days upon the production by the employer of a record as stipulated under Section 74 of the Employment Act which mandates the employer to keep records of among others; weekly rest and leave days to wit the employee is entitled. If the employer does not produce such records, then the Court would be duty bond to grant such reliefs for unpaid annual leave days as claimed in paragraph 9 of the Memorandum of Claim dated 19th February 2022”. The appellant submitted that the trial Court, failing to determine the prayer for the leave sought, erred both factually and legally, as the Employment Act is very clear that an employee is entitled to 21 days' leave. J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 4 P a g e 21 | 27

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49. The court found that the respondent did not contest the issue of leave. The respondent did not produce a letter of employment or record to prove the appellant was granted statutory right of leave. The court then, in the circumstances, awarded the claim of leave of 21 statutory days (section 28 of the Employment Act) as sought. If the employer had produced an employment contract with a provision of leave under section 28(4) limiting the claim to 18 months, it would have applied. This is not the case, and thus the leave is awarded as sought, Kshs.24,459.96. 50. Claim house allowance arrears - The Appellant claims house allowance to the tune of Kshs. 67,867.50. The learned trial Magistrate, in dismissing the entire claim without determining this issue of house allowance, committed an error of law and fact, as it ought to have determined this issue and awarded the Appellant the house allowance sought, as the same is not reflected in the payroll produced in court. Section 31 of the Employment Act entitles an employee to housing or a housing allowance from his employer at 15% of the monthly basic salary. The backdrop to this claim is that the appellant was underpaid, as confirmed by the respondent’s witnesses, where they both confirm that he was being paid Kshs. 15,000 unlike Kshs. 15,141 as provided by the Minimum Wage 2018. Moreover, no pay slip was produced to show consolidation of the appellant's pay. From the foregoing, it is clear that house allowance was not paid as per Section 31 of the Employment Act. The same is awarded as follows- Kshs. 15141.95x 15/100 x 26 months and 9 days, thus Kshs. 59.735/-. J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 4 P a g e 22 | 27

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51. Claim for Holidays worked -The appellant sought Kshs. 12,812.80 being an entitlement for double pay for the holidays worked. He went on to testify that he worked during public holidays and was not paid double as legally required. The Respondent’s witness RW1 confirmed that indeed the appellant worked during holidays, see page 16 of the record of appeal 10th line and proceed to states that such days were paid. No evidence of such payment was adduced to this effect. The claim for holidays was a special damage requiring specificity. On perusal of the claim, I find that the figure was not particularized. Which public holiday did the claimant work and was not paid? It was the appellant’s burden to prove on a balance of probabilities. The claim is declined. 52. Overtime claim - The Appellant’s claimed overtime work totaling to Ksh. 253,326.60 for the period he worked for the Respondent (see the amended memorandum of claim at page 115 of the record of appeal 10th line). In Kenya National Private Security Workers Union v G4s Kenya Limited & 2 others; Central Organisation of Trade Unions Cotu (K) & 4 others (Interested Parties) [2021] eKLR the Court had this to say on the issue of overtime‘The Regulation of Wages (Protective Security Services) Order, 1998 provides for overtime as follows 7. Overtime (1) An employee who works for any time in excess of the normal hours of work specified in paragraph 6 shall be entitled to be paid for the overtime thereby worked at the following rates (a) one-and-a half times his normal rate of wages per hour in respect of any time J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 4 P a g e 23 | 27

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worked in excess of the normal hours of work; and (b) twice the normal rate of wages per hour in respect of any time worked on a rest day. (2) the purpose of calculating payment for overtime in accordance with subparagraph (1), the basic hourly rate shall, where the employee is not employed by the hour, be deemed to be one-two hundred and twenty-fifth of the employee's basic.’ 53. The appellant testified that he worked 4 hours as overtime per day. The respondent through its witness one Jacob Ochieng confirmed that the appellant worked from 6pm to 6am. (see pages 16 and of the record of appeal 10th and 20th line respectively). The respondent’s witnesses proceeded to state that the overtime was paid (see page 16 of the record of appeal 10th line,) however no evidence was called to this effect. The Appellant on his side testified that he worked from 6:00 p.m to 6:00 a.m which translates to 12 hours per day which amounts to 72 hours per week unlike the 52 hours per week as is provided under Regulation of wages (Protective Security Services) Order,1998. I find that the claim of overtime was admitted by the respondent’s witnesses. The same is allowed for 26 months and 9 days as follows- 1.5 @48.53 per hour x 4 hours x26 days x 26months and 9 days thus 199,458/- 54. Certificate of Service-The Appellant requested for a certificate of service. In his judgement, the trial magistrate refused to grant this prayer as he J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 4 P a g e 24 | 27

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dismissed the entire claim without delving into issue per issue. Section 51(1) of the Employment Act 2007 states; ‘An employer shall issue to an employee certificate of service upon the termination of the employee’s contract, unless the employment was for a period of less than four consecutive weeks” The appellant is entitled to a certificate of service as a matter of right. On claim counterclaim 55. The court having upheld the finding on the desertion holds that the respondent was entitled to claim notice pay of statutory 1 month notice of Kshs. 15,141.95 which is allowed. The claim for refund on tyre was not proved, as the theft was not proved. The decision of the trial court is upheld on the claim for refund of the tyre cost. Disposition. 56. The appeal is allowed partially. 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 as follows- ‘Judgment is entered for the claimant for terminal dues against the respondent as followsa. Underpayment of basic salary Kshs.3,733.30. b. Housing Kshs. 59,735/c. Payment of leave in lieu- Kshs. 24,459.96. J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 4 P a g e 25 | 27

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d. Overtime 199,458/e. costs and interest Certificate of service to be issued under section 51 of the Employment Act through the Advocates Office in 30 days.’ 57. The respondent’s counterclaim of Notice payment is allowed for 1 month's salary, Kshs. 15,141.95, which is set off from the above award, making the total payable sum payable to the claimant by the respondent Kshs. 272,244.31. 58. On appeal, I award ½ costs to the Appellant. DATED, SIGNED, AND DELIVERED VIRTUALLY AT MACHAKOS THIS 18 TH DAY OF SEPTEMBER, 2026. Jemimah Keli, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Appellant – Waigwe Respondent – Juma- we request a 30-day stay COURT ORDER J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 4 P a g e 26 | 27

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30 days stay not opposed and is granted. Jemimah Keli, JUDGE. 18/09/2026 J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 4 P a g e 27 | 27

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