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ELRCPartially AllowedMombasa ELRC Appeal (from CM ELRC No.424 of 2021)

Security Alert Services Limited v Kebuko (Appeal E114 of 2024) [2025] KEELRC 333 (KLR)

Employment and Labour Relations Court
6 February 2025
2,676 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that employers who skip written contracts and proper termination process will pay, and a discharge note won't shield them.

What this practically means

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Executive summary

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This is a first appeal against the judgment of the learned magistrate in Mombasa CM ELRC No.424 of 2021, delivered on 7 May 2024, which found that the appellant unfairly terminated the respondent's employment and awarded Ksh.528,938.48 plus costs. The respondent claimed she was employed as a day guard from February 2013 (deployed 2014) at Ksh.6,800 per month and terminated without notice in July 2020, and claimed notice pay, house allowance, overtime, rest days, underpayments and compensation. The appellant asserted two separate contracts punctuated by resignations and a mutual separation recorded in a Discharge Note dated 11 February 2021. On appeal, the court held it was duty-bound to re-evaluate the entire record. It found the alleged resignation notices were never attached, that employment commenced on 1 March 2014 and ran continuously for 8 years, and that the respondent became protected under Section 37 of the Employment Act. The Discharge Note could not bar claims under Section 35(4). The court affirmed that an employee who abandons employment does not dismiss herself; the employer must formally terminate with due process under Sections 44 and 18(5)(b). Applying Section 89, continuing-injury claims (house allowance, overtime, rest days) were confined to the 12 months before cessation, and the claim filed on 30 June 2021 was in time. The court reviewed the judgment, affirming compensation and notice pay, and adding overtime of Ksh.121,672, rest days of Ksh.5,822.40 and house allowance of Ksh.24,431.22, with trial court costs retained and the appellant to meet 25% of the respondent's costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondent worked for the appellant continuously for 8 years or in two separate contracts punctuated by resignations
  2. 2.Whether the Discharge Note dated 11 February 2021 evidencing mutual separation bars the respondent's claims
  3. 3.Whether termination of the respondent's employment was unfair for want of notice, reasons and due process
  4. 4.Which of the respondent's claims for terminal dues (notice pay, compensation, house allowance, overtime, rest days, underpayment) were payable and within the limitation period

Key legal issues

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01

Continuity of employment and duration of service

Holding

The respondent worked continuously for 8 years from 1 March 2014; the alleged resignations were not proved and no termination notices were attached

Reasoning

The appellant asserted two contracts each ending with resignation, but no resignation notices were attached. Employment commenced February/March 2014 with no letter of resignation or termination. The Discharge Note's admission of Ksh.3,500 terminal dues confirmed employment. The court found the trial magistrate's finding of 8 years of service correct.

p. 5
02

Effect of the Discharge Note / mutual separation agreement

Holding

The Discharge Note could not discharge the appellant from lawful claims, including the right to dispute fairness of termination under Section 35(4)

Reasoning

Section 35(4) preserves the employee's right to dispute the lawfulness or fairness of termination. The note must be given context and does not remove the employee's right to claim lawfully denied employment benefits; the admission of terminal dues confirmed employment.

p. 4
03

Fairness of termination

Holding

Termination was unfair: no written reasons, no due process, and the employer failed to bring closure after alleged abandonment

Reasoning

Absence from work without permission is gross misconduct under Section 44, requiring the employer to issue notice to the employee to respond, and to terminate with notice copied to the Labour Office under Section 18(5)(b). The appellant did neither, so employment terminated unfairly without valid reason.

p. 5
04

Limitation on continuing-injury claims

Holding

House allowance and overtime claims are continuing injuries claimable only within 12 months of cessation; the claim filed on 30 June 2021 was in time

Reasoning

Section 89 of the Employment Act limits claims to 12 months for continuing injuries. The respondent was terminated after leave in July 2020 and issued a Discharge Note on 11 February 2021; the claim filed 30 June 2021 fell within the 12-month window for the continuing-injury heads.

p. 5

Legal principles established

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  • It is the legal duty of the employer to issue a written contract of employment; failure to do so exposes the employer and obliges the court to rely on the employee's word
  • Continuous employment without a written agreement converts a casual employee to a permanent employee protected under Section 37 of the Employment Act
  • A mutual separation or discharge note cannot bar an employee's lawful claims arising from unfair termination
  • An employee who absconds or abandons employment does not dismiss herself; the employer must formally end the employment relationship with notice and due process
  • Claims based on continuing injuries (house allowance, overtime) must be filed within 12 months of cessation of employment under Section 89 of the Employment Act

Court orders

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  1. 1.Declared that the employment of the respondent by the appellant was terminated unfairly
  2. 2.Compensation Ksh.162,874.80
  3. 3.Notice pay Ksh.13,872.90
  4. 4.Overtime Ksh.121,672
  5. 5.Rest days Ksh.5,822.40
  6. 6.House allowances Ksh.24,431.22
  7. 7.Costs of the trial court as awarded
  8. 8.The appellant is to meet 25% of the costs for the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Chief Magistrate's Court, Mombasa (ELRC)
CM ELRC No.424 of 2021
Jurisdiction invoked
First appeal from the magistrates' court under the Employment Act and ELRC procedural framework

Relief refused

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Underpayments claim

The respondent did not particularise the various years and what was paid from 2014; the last wage paid was in line with the Wage Orders and house allowance was dealt with separately

p. 6

Unparticularised portion of continuing-injury claims beyond 12 months

Claims for house allowance and overtime are continuing injuries actionable only within 12 months of cessation under Section 89 of the Employment Act

p. 5

Costs

Costs of the trial court as awarded; the appellant to meet 25% of the costs for the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, as analyzed above, the judgment in Mombasa CMELRC No.424 of 2021 is hereby reviewed in the following terms;
p. 6disposition
The employment of the respondent by the appellant was terminated unfairly;
p. 6unfair termination finding
The appellant is to meet 25% of the costs for the respondent.
p. 6costs order
It is the legal duty of the employer to issue the employee with a written contract of employment stating the terms and conditions of employment as required under Section 10(3) of the Employment Act.
p. 4employer's duty to issue written contract
the employee who deserts, absconds or abandons her employment does not dismiss herself. The decision to formally end the employment relationship should come from the innocent party, the employer.
p. 5abandonment does not terminate employment

Issues in the judgment

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minor

Notice pay awarded in the trial judgment is recorded as Ksh.13,872.88 but the final orders record Ksh.13,872.90

minor

The appellant's response states the respondent applied for the position on 12 February 2024, an apparent error for 2014 given the pleaded deployment date of 3 March 2014

minor

The trial award figure of Ksh.352,190.80 for underpayments is reproduced with the typographical error 'Underlayment'

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Security Alert Services Limited v Kebuko (Appeal E114 of 2024) [2025] KEELRC 333 (KLR)", Case Analysis (2025). Mombasa ELRC Appeal (from CM ELRC No.424 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/333/eng@2025-02-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.