Mwasaru v Texas Alarms

The Claimant’s Case 6. The Claimant states that she joined the Respondent in 2013 as a security guard and served for ten years. Her witness statement states that she earned KShs. 16,000 per month. It is not disputed that during the latter part of her employment the Claimant developed signicant gynaecological health problems. 7. The medical evidence produced shows that she had been diagnosed with uterine broids in 2016 and had undergone a myomectomy. The condition subsequently recurred. In July 2023, she developed severe anaemia associated with profuse bleeding, was admitted to Coast General Teaching and Referral Hospital, received three pints of blood and was scheduled for another myomectomy. 8. A medical letter dated 20th July 2023 requested that the Claimant be given one month’s adequate rest. A subsequent medical report dated 8th September 2023 stated that the repeat surgical procedure had been successful but, because it had been a dicult repeat procedure, the Claimant should continue to be exempted from strenuous duties until further notice. 9. On 8th September 2023, the Claimant addressed a handwritten letter to the Respondent headed “Early Retirement Due to Health Reasons.” She explained that after considering her medical circumstances and consulting her doctor, she wished to leave employment so that she could focus on her health. 10. Her advocates also wrote to the Respondent on 8th September 2023 requesting that she be permitted to retire early on medical grounds and that her terminal benets be calculated. 11. The Claimant’s case is that her departure should therefore be regarded as retirement occasioned by medical incapacity rather than an ordinary voluntary resignation. 12. In her nal submissions, however, the Claimant revised certain factual aspects of her pleaded case. She accepted that the Respondent’s documentary evidence showed a terminal payment of KShs. 57,700, rather than the KShs. 90,000 stated in the pleadings. She described the KShs. 57,700 as grossly inadequate for an employee who had served for ten years. 13. The Claimant also modied her leave claim. Whereas she initially sought leave pay for ten years, she acknowledged in her submissions that the Respondent had produced leave forms for two years. She therefore sought leave for the remaining eight years calculated as: KShs. 16,000 × 21/30 × 8 = KShs. 89,600. She maintained a gratuity claim of KShs. 160,000, calculated at one month’s salary for each of ten years of service. The Respondent’s Case 14. The Respondent admits the employment relationship. Its documentary record shows that the Claimant was engaged under a letter of employment dated 31st January 2013 and initially assigned employee number 80131. 15. The Respondent further produced a promotion letter dated 13th May 2019 showing that the Claimant was promoted to the position of Permanent Guard with eect from 1st June 2019 and assigned employee number 66824. 16. Bernard Odhiambo Aduda, the Respondent’s Group Human Resource Manager, stated that the Claimant initially worked under contractual terms but subsequently became a permanent guard. His statement further asserted that the Claimant’s wages were periodically adjusted in accordance with applicable minimum wage requirements. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/844/eng@2026-08-27 2

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17. The Respondent accepts that the Claimant suered genuine medical diculties. Its disagreement is with the legal characterisation of her departure. 18. The Respondent relies particularly upon its letter dated 9th September 2023 responding to the Claimant’s request for early retirement. In that correspondence, the Respondent stated that after reviewing the medical material, it did not consider the Claimant’s condition to call for early retirement because the medical recommendation was that she could return to employment while being exempted from strenuous duties. 19. The Respondent nevertheless stated that, because leaving employment was the Claimant’s own wish, it had no alternative but to accept her resignation. 20. The Respondent consequently characterises the Claimant’s departure as a voluntary resignation rather than retirement initiated by the employer on medical grounds. 21. The Respondent also produced two leave forms relating to annual leave in 2021 and 2022, together with numerous payslips reecting NSSF and NHIF deductions. 22. It further produced the Claimant’s written request dated 9th September 2023 asking that her nal dues, if any, be deposited into her Tabasuri account, together with a cheque for KShs. 57,700. 23. The Respondent’s Certicate of Service records employment commencing on 31st January 2013 and a date of leaving of 26th July 2023.There is an obvious chronological inconsistency in that document because the parties’ correspondence regarding the Claimant’s request to leave employment occurred on 8th and 9th September 2023. Neither party satisfactorily explained why the Certicate of Service records 26th July 2023 as the date of leaving. The discrepancy does not, however, alter the substantive evidence regarding who initiated the separation. Issues for Determination 24. Having considered the pleadings, evidence and submissions, the Court is of the view that the following issues arise: a. Whether the Claimant was medically retired or voluntarily resigned from employment; b. Whether the Claimant is entitled to service pay; c. Whether the Claimant is entitled to gratuity; d. Whether the Claimant is entitled to unpaid annual leave; e. Whether any claim founded on alleged underpayment or severance pay is properly before the Court; f. What orders should issue as to costs and interest. Whether the Claimant Was Medically Retired or Voluntarily Resigned 25. The existence and seriousness of the Claimant’s medical condition are not in doubt. The question is whether the evidence demonstrates that the Respondent terminated or retired the Claimant because she was medically incapable of continuing in employment. 26. In resolving that question, the contemporaneous documents are particularly important. The medical report of 20th July 2023 recommended one month’s rest. The later report of 8th September 2023 did not state that the Claimant was permanently incapable of employment. Rather, after stating that the https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/844/eng@2026-08-27 3

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surgery had been successful, it recommended that she be exempted from strenuous duties until further notice. 27. The Respondent expressly referred to that recommendation in its letter of 9th September 2023. Its position was that the Claimant could remain employed subject to exemption from strenuous duties. The decision to terminate the employment relationship did not therefore emanate from the Respondent. It emanated from the Claimant. 28. The Claimant’s own handwritten letter is unequivocal in expressing her desire to leave employment because she considered continuation detrimental to her health. She requested that she be released so that she could focus on her medical condition. Her advocates similarly requested early retirement on her behalf. 29. The Respondent did not accept that medical retirement was medically necessary. Instead, it accepted the Claimant’s wish to leave and treated the separation as a resignation. 30. There is no evidence that the Respondent dismissed the Claimant, coerced her to resign or prevented her from returning subject to reasonable modication of her duties. 31. The Court therefore nds that, notwithstanding the genuine medical circumstances which motivated the Claimant’s decision, the termination of the employment relationship was initiated voluntarily by the Claimant. 32. The Court accordingly nds that the Claimant resigned from employment for medical reasons. Her departure was not a medical retirement imposed or initiated by the Respondent. It follows that no compensation for unfair termination or wrongful dismissal can arise on the evidence before the Court. Limitation of the Claim for Annual Leave 33. The Claimant initially claimed leave pay for ten years. Upon the Respondent producing leave forms for two years, she revised the claim in her nal submissions to eight years and calculated it at: KShs. 16,000 × 21/30 × 8 = KShs. 89,600. 34. Before considering whether the Respondent suciently accounted for those eight years, the Court must determine whether the claim is maintainable in light of section 90 of the Employment Act, 2007. 35. Section 90 provides that an action founded upon the Employment Act or a contract of service must ordinarily be commenced within three years after the act, neglect or default complained of, while a claim involving a continuing injury or damage must be commenced within twelve months after cessation thereof. 36. Limitation under section 90 is not merely a technical defence concerning the merits of a claim. Once the statutory period has expired, the Court cannot confer upon itself jurisdiction to determine the barred claim. 37. The Court of Appeal considered section 90 extensively in G4S Security Services (K) Limited v Joseph Kamau & 468 Others [2018] KECA 827 (KLR). The Court rejected the proposition that unpaid employment benets remain indenitely actionable merely because they remain unpaid. It held that a continuing injury must be pursued within twelve months after cessation and that termination of employment provides the relevant cessation point for such a claim. 38. More recently, in Mbithi v Khataw [2026] KEELRC 831 (KLR), the Court, applying G4S Security Services, specically held that claims concerning historical leave, public holidays and statutory dues https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/844/eng@2026-08-27 4

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spanning several years constituted continuing injuries which ceased upon termination and were therefore barred where proceedings were commenced more than twelve months thereafter. 39. Annual leave itself is governed by section 28 of the Employment Act. An employee is entitled to at least twenty-one working days of leave with full pay after every twelve consecutive months of service. Section 28(4) further contemplates the taking of the remainder of annual leave no later than eighteen months after the end of the relevant leave-earning period. 40. The Claimant seeks leave allegedly accumulated over eight years. The alleged failure to grant the leave necessarily occurred during the subsistence of employment and, at the latest, any continuing injury arising from that failure ceased when the employment relationship ended. 41. There is some documentary inconsistency regarding the precise date of cessation. The Certicate of Service gives 26th July 2023 as the date of leaving, yet the Claimant's request for early retirement/ resignation and the Respondent's acceptance occurred on 8th and 9th September 2023 respectively. 42. I need not resolve that discrepancy for purposes of limitation because even adopting 9th September 2023, being the later and therefore more favourable date to the Claimant, the result is the same. 43. The material before the Court establishes that this claim was led in October 2024, more than twelve months after 9th September 2023. The Claimant's claim for historical accrued annual leave was therefore instituted outside the twelve-month limitation prescribed for a continuing injury under section 90. It follows that the Court has no jurisdiction to entertain the claim for eight years' accrued leave. The claim for leave pay is accordingly dismissed as statute-barred. 44. In view of that nding, it is unnecessary to determine whether production of leave records for only 2021 and 2022 would otherwise have suciently discharged the Respondent’s evidential burden for the remaining years. Service Pay 45. The Claimant pleaded service pay for six years calculated as: KShs. 16,000 × 15/30 × 6 = KShs. 48,000. 46. The Respondent produced payslips showing NSSF deductions during the employment relationship. Section 35(6) of the Employment Act excludes from statutory service pay employees who are members of NSSF and employees falling within the other statutory exclusions enumerated therein. The Claimant did not rebut the documentary evidence establishing NSSF deductions. 47. The Respondent's nal submissions therefore correctly raised the statutory exclusion. Moreover, although service pay featured in the original claim, the Claimant's nal computation did not distinctly pursue the KShs. 48,000 initially claimed. I consequently nd that the Claimant has not established an entitlement to statutory service pay. Gratuity 48. The Claimant seeks KShs. 160,000 as gratuity, calculated at one month's salary of KShs. 16,000 for each of ten years served. Her nal submissions state that she rendered ten years of continuous and exceptional service and that her promotion demonstrated that service, thereby making her deserving of gratuity. Long and commendable service does not, without more, create a legal entitlement to gratuity. 49. Service pay and gratuity are conceptually distinct. Service pay is statutory and subject to section 35 of the Employment Act. Gratuity is ordinarily contractual and must be founded upon the contract of https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/844/eng@2026-08-27 5

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employment, a collective bargaining agreement, employer policy or another enforceable instrument. This distinction has been reiterated in Kenyan employment jurisprudence. 50. I have examined the Claimant's letter of employment dated 31st January 2013 and her subsequent promotion letter. Neither provides for gratuity at one month's salary for each completed year of service. No collective bargaining agreement, human resource manual, retirement scheme or other contractual instrument containing such an entitlement was placed before the Court. The Court cannot create a gratuity term merely because the Claimant served the Respondent for approximately ten years. Severance Pay 51. The Claimant's nal submissions additionally referred to severance pay. Severance pay is a statutory entitlement associated with termination on account of redundancy. There was no redundancy in this case. The Claimant herself initiated cessation of the employment relationship for health reasons. Further, severance pay was not separately quantied as a substantive head of claim in the original Memorandum of Claim. The reference to severance pay in submissions cannot convert the Claimant's resignation into a redundancy or introduce a new substantive monetary claim. The claim for severance pay therefore fails. Alleged Underpayment 52. The Claimant's nal submissions introduced the contention that her salary at separation was KShs. 14,900, which she asserted was below the applicable minimum wage. There are two diculties with that contention. 53. First, the Memorandum of Claim pleaded a salary of KShs. 16,000 and did not plead a distinct monetary claim for salary underpayment. It is trite that parties are bound by their pleadings. Written submissions cannot amend pleadings or introduce a substantive monetary cause of action upon which the opposing party was not called upon to answer through evidence. 54. Second, no applicable Regulation of Wages Order, statutory wage category, prescribed rate or computation of the alleged shortfall was placed before the Court by the Claimant. The Court would therefore have no evidential basis upon which to calculate an underpayment even if the claim had been properly pleaded. No award can consequently issue under this head. The KShs. 57,700 Terminal Payment 55. The Court must also address the considerable inconsistency concerning the terminal payment. In her pleadings and witness statement, the Claimant acknowledged receiving KShs. 90,000 as terminal dues. The Respondent's documentary evidence, however, contains a cheque for KShs. 57,700, and both parties' nal submissions proceeded on the footing that KShs. 57,700 was the amount paid. 56. The Claimant herself relied upon KShs. 57,700 in her nal submissions, describing it as inadequate after ten years of service. The discrepancy was not satisfactorily explained. 57. More importantly, the mere fact that an employee has rendered ten years of service does not itself determine the quantum of terminal dues. Terminal dues must correspond to identiable contractual or statutory entitlements. 58. In the present case, the additional heads sought have individually failed: historical leave is time-barred; statutory service pay is excluded by the evidence of NSSF membership; gratuity has no demonstrated contractual foundation; severance does not arise because there was no redundancy; and underpayment was neither properly pleaded nor proved. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/844/eng@2026-08-27 6

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59. Consequently, whether the terminal amount actually paid was KShs. 57,700 or KShs. 90,000 does not furnish an independent legal basis for an additional award. Authorities Relied Upon by the Parties 60. I have considered the authorities cited by both parties. The Claimant relied, inter alia, upon Elijah Kipkoros Tonui v Ngara Opticians T/A Bright Eyes Limited and Kenya Chemical & Allied Workers Union v Kapa Oil Reneries Limited in support of her contention that an employee leaving employment because of ill-health should receive appropriate terminal benets. Those authorities do not, however, displace the necessity of establishing the particular statutory or contractual entitlement claimed. 61. The Respondent relied, among other authorities, upon Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 Others [2014] eKLR. I have considered the authority in its proper factual context. The Court of Appeal matter principally concerned restructuring, redundancy and retrenchment aecting hundreds of employees and the remedies consequent upon unfair redundancy. It should therefore not be treated as a general authority that every voluntary resignation automatically extinguishes all accrued employment benets. 62. Accrued statutory or contractual benets may survive cessation of employment according to their legal basis. The diculty for the Claimant in this case is not merely that she resigned; it is that the particular additional benets claimed have either not been established or, in the case of historical leave, are barred by section 90. 63. I have similarly considered the other authorities relied upon by the Respondent concerning service pay, leave, resignation and compensation. Ultimately, the matter turns on the statutory provisions and the evidence produced by the parties. Documentary and Pleading Inconsistencies 64. Before concluding, several inconsistencies in the record deserve mention. First, the Claimant pleaded receipt of KShs. 90,000, whereas the documentary cheque and both parties' nal submissions refer to KShs. 57,700. 65. Second, the Claimant pleaded a salary of KShs. 16,000, yet her nal submissions state that her salary at separation was KShs. 14,900 while continuing to calculate her proposed reliefs using KShs. 16,000. 66. Third, the original computation contained arithmetic inconsistencies. The separately pleaded gures of KShs. 112,200, KShs. 48,000 and KShs. 160,000 total KShs. 320,200, rather than KShs. 320,000. The pleading further contained a computation involving KShs. 244,800 less KShs. 90,000 producing KShs. 230,000, which is mathematically incorrect. 67. Fourth, the Certicate of Service records 26th July 2023 as the Claimant's date of leaving, although the material correspondence concerning her request to leave and its acceptance occurred on 8th and 9th September 2023. 68. Those inconsistencies do not by themselves determine the suit, but they reinforce the necessity of examining each claimed entitlement independently against the evidence and applicable law. Conclusion 69. The Claimant served the Respondent for approximately ten years. The evidence further establishes that she suered a serious medical condition towards the end of her employment. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/844/eng@2026-08-27 7

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70. The Court does not minimise those circumstances. Nevertheless, judicial determination of terminal benets must rest upon established statutory or contractual rights. 71. Upon evaluating the evidence and the law, I nd as follows: a. The Claimant voluntarily resigned from employment for medical reasons. She was neither dismissed nor compulsorily medically retired by the Respondent. b. The claim for compensation founded upon unfair or wrongful termination therefore does not arise. c. The claim for eight years' historical annual leave was instituted outside the twelve-month limitation applicable to continuing injury under section 90 of the Employment Act and is consequently statute-barred. The Court of Appeal's interpretation of section 90 in G4S Security Services (K) Limited v Joseph Kamau & 468 Others is binding in that respect. d. The claim for service pay fails because the documentary evidence establishes NSSF deductions and the statutory exclusion under section 35(6) applies. e. The claim for gratuity fails because no contractual, collective bargaining or other legal instrument establishing the pleaded entitlement was proved. f. The claim for severance pay fails because there was no redundancy. g. The alleged underpayment was neither properly pleaded nor suciently proved. h. No further terminal sum has therefore been demonstrated to be due to the Claimant. Disposal 72. In the circumstances, the Claimant has failed to establish any of the monetary reliefs sought in the Memorandum of Claim. The Claimant's suit is accordingly dismissed. On costs, section 12(4) of the Employment and Labour Relations Court Act preserves the Court's discretion. I have considered the nature of the employment relationship, its duration, the genuine medical circumstances surrounding the Claimant's departure, the fact that there was a legitimate dispute concerning the characterisation and computation of her terminal benets, and the parties' respective conduct. In the circumstances, I consider it just that each party shall bear its own costs. Accordingly, the nal orders of the Court are: a. The Claimant's claim is dismissed. b. Each party shall bear its own costs. Orders accordingly. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOSFT TEAMS AT MOMBASA THIS 27TH AUGUST 2026. ………………………………………………. EMILY M. MWAMUYE SENIOR RESIDENT MAGISTRATE https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/844/eng@2026-08-27 8

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