KUDHEIHA Workers Union Dika Shunu Dawa v Diani Marine Limited & another (Cause E037 of 2024) [2025] KEELRC 1235 (KLR)
The bottom line
#A Kenyan court awarded a security guard terminal dues despite a signed discharge voucher, but cut claims to the 3-year and 12-month statutory deadlines.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a claim arising out of fixed-term contracts is time-barred under section 89 of the Employment Act
- 2.Whether the discharge voucher executed by the grievant bars the claim
- 3.Whether service pay/gratuity is due under section 35(5) of the Employment Act and the Regulation of Wages [Protective Security Services] Order 1998
- 4.Whether there was salary underpayment for 36 months
- 5.Whether overtime, rest day and public holiday claims were proved
- 6.Whether accrued annual leave for 3 years and leave travelling allowance are payable
Key legal issues
#Effect of discharge voucher on statutory terminal dues
The discharge voucher executed by the grievant does not bar claims for lawful terminal dues under the Employment Act
The respondents relied on a signed discharge voucher releasing future claims. The court held that unlike commercial disputes, an employee may challenge non-payment of lawful terminal dues, and a discharge voucher cannot negate statutory entitlements where dues are lawfully established.
Limitation under section 89 for continuing injuries
Overtime and similar continuing injuries must be claimed within 12 months from cessation; other fixed-term contract claims within 3 years
Applying Kenya Railways Corporation v Ododa, the court limited the overtime claim to the last contracts going back one year, holding that accrued overtime is a continuing injury claimable within 12 months of cessation of employment.
Service pay/gratuity entitlement
Gratuity of 15 days' pay per full year worked is due under Regulation 17 of the Protective Security Services Order for the last 3 years; assessed at Ksh.36,000
The grievant was a security guard covered by the Protective Security Services Order 1998. Following Kibiru v Mars Security Guards, he was entitled to gratuity at 15 days per full year worked for the contracts within the 3-year limitation window, computed at his wage of Ksh.12,000.
Salary underpayment claim
No underpayment; the wage paid exceeded the statutory minimum inclusive of house allowance
The applicable minimum wage for a security guard in October 2022 was Ksh.8,109.90 basic plus 15% house allowance, grossing Ksh.9,326.35. The grievant earned Ksh.12,000, so the claim for underpayment failed and seeking more would be unjust enrichment.
Overtime, public holidays and annual leave
Overtime of Ksh.73,000 awarded on uncontroverted evidence; public holiday claim dismissed for lack of particulars; 33 leave days awarded at Ksh.13,200 as leave cannot accumulate beyond 18 months
Respondents failed to file work schedules or leave records as required under sections 10(6), (7), 74 and 28 of the Act. The grievant's testimony of 14-hour days was accepted for overtime. The public holiday claim failed as general and unparticularised.
Legal principles established
#- A fixed-term contract is lawful, runs on its terms and requires no notice or reasons for termination
- Claims arising from fixed-term contracts must be brought within 3 years under section 89, and continuing injuries within 12 months from cessation
- A discharge voucher cannot be used to negate an employee's statutory entitlements such as lawful terminal dues
- An employee claiming under the Protective Security Services Order bears an evidential burden to establish breach of its provisions
Court orders
#- 1.Judgment entered for the claimant against the respondents for terminal dues of Service/gratuity Ksh.36,000; Leave pay Ksh.13,200; Overtime pay Ksh.73,000
- 2.Costs assessed at Ksh.50,000 payable by the respondents to the claimant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; dispute reported to the Minister under the Labour Institutions Act)
Relief refused
#Salary underpayments for 36 months (Ksh 134,013.60)
The wage paid exceeded the applicable minimum wage and was inclusive of house allowance
33 public holidays (Ksh. 34,589.28)
General claim without particulars; burden not discharged
Leave travelling allowances for 3 years (Ksh.16,800)
No evidential support and not a contractual benefit
Service pay of Ksh 314,452 beyond gratuity under the Wage Orders
No CBA filed; on the evidence service pay as pleaded not due, only gratuity under the Wage Order
Claims exceeding the limitation window under section 89 of the Employment Act
Claims out of fixed-term contracts limited to 3 years, and continuing injuries such as overtime to 12 months from cessation
Costs
The respondents shall pay the costs assessed at Ksh.50,000.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
A fixed-term contract is lawful and legitimate. It runs on its terms and conditions and requires no notice or reasons for termination.
by addressing each claim, where lawfully due, the discharge voucher cannot be applied to negate the law.
An Employee claiming under these provisions has an evidential burden of establishing that, his Employer acted in breach of the provisions.
Accordingly, judgment is entered for the claimant against the respondents in the following terms;
The grievant is entitled to the following terminal dues; i. Service/gratuity Ksh.36,000; ii. Leave pay Ksh.13,200; iii. Overtime pay ksh.73,000
Costs Ksh. 50,000.
Issues in the judgment
#Judgment inconsistently describes the underpayment claim as 36 months in the relief sought but as 'salary underpayments for 36 years' in the analysis
Overtime computation arithmetic in the judgment appears inconsistent with the stated figures
The discharge voucher holding cites Section 35(4) of the Employment Act while the claim pleads Section 35(5) for service pay
Names of the respondents are not stated in the judgment text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "KUDHEIHA Workers Union Dika Shunu Dawa v Diani Marine Limited & another (Cause E037 of 2024) [2025] KEELRC 1235 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1235/eng@2025-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.