Riley Falcon Security Services v Makinya (Appeal E016 of 2024) [2025] KEELRC 1690 (KLR)
The bottom line
#Kenya's Employment Court threw out a security guard's multi-million award because he waited too long, took NSSF, and signed away his right to sue.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Respondent's employment was unfairly terminated by the Appellant
- 2.Whether the Respondent is entitled to compensation for summary dismissal
- 3.Whether the Respondent is entitled to leave pay
- 4.Whether the Respondent is entitled to salary in lieu of notice
- 5.Who should bear costs of the suit
Key legal issues
#Whether the termination was procedurally and substantively fair
The termination was fair: charges were levelled and signed, a show-cause notice issued and answered, a disciplinary hearing held, and there was a valid ground (inebriation at work constituting misconduct)
The Court traced the sequence: the Respondent was found inebriated on 10th January 2018, signed charges, responded to a notice to show cause, was suspended, and faced a disciplinary hearing on 17th January 2018 where he admitted consuming alcohol. Section 41 of the Employment Act was satisfied and the employer had a valid reason under sections 43 and 45. The Magistrate's contrary finding, including that no defence evidence was adduced, was contradicted by the proceedings of 25th July 2022.
Limitation on leave, overtime and off-days claims
Awards covering periods beyond three years were statute-barred and erroneous, and were reversed
Section 90 of the Employment Act caps such claims at three years from when they arise, each month giving rise to a fresh cause of action. The trial court's awards for 23 years' accrued leave and extensive overtime/off-day periods exceeded the permissible period, so they were reversed.
Entitlement to service pay
Service pay of Kshs. 217,710 was reversed in its entirety because the Respondent was an NSSF member
Under section 35 of the Employment Act an employee who is a member of NSSF is not entitled to service pay. The Respondent admitted in cross-examination to holding an NSSF number, so the award could not stand.
Effect of the discharge voucher
Having acknowledged receipt of final dues by a discharge signed on 24th April 2018, the Respondent waived the right to sue
The Respondent signed a discharge acknowledging final dues, which constituted an express waiver of the right to file suit, providing an independent basis for dismissing the claim.
Compensation under sections 49 and 50
No compensation was payable because only the employee was at fault
Compensation for unlawful termination depends on the conduct of both employee and employer; here the employee's misconduct caused the dismissal, and since the termination was proper and fair there was no basis for an award.
Legal principles established
#- Claims for accrued leave, overtime and off days must be brought within three years under section 90 of the Employment Act; awards beyond that period are erroneous
- An employee who is a member of NSSF is not entitled to service pay under section 35 of the Employment Act
- A dismissal is unfair where there is no valid ground and no fair hearing; where both exist the termination is lawful
- A discharge voucher signed on receipt of final dues operates as a waiver of the right to sue
- In a first appeal the court must re-evaluate the evidence afresh while allowing for the lack of advantage of seeing the witnesses
Court orders
#- 1.Judgment of the Learned Magistrate set aside in its entirety
- 2.Suit before the Magistrate's Court dismissed with costs to Riley Falcon Security Services
- 3.No costs on the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Kisumu
- Not stated in the judgment
- Jurisdiction invoked
- First appeal on facts and law from the Chief Magistrate's Court
Relief refused
#Respondent's reliefs for unlawful termination compensation, service pay, overtime, off days, notice pay and accrued leave
Termination was procedurally and substantively fair; claims beyond three years were statute-barred; service pay barred by NSSF membership; right to sue waived on discharge
Costs
Suit dismissed with costs to the employer Riley Falcon Security Services in the trial court; no costs on the appeal
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.
In the final analysis the Court sets aside the judgment of the Learned Magistrate in its entirety and substitutes it with an order dismissing the suit before the Magistrate with costs to the employer Riley Falcon Security Services. There however will be no costs on this appeal.
It is the finding of the Court that given the narration in the preceding paragraph the employer had not only a good reason for termination but also followed the dictates of the law in terminating the employee.
The Respondent was entitled to annual leave but any such claims for leave would have to be presented to Court within 3 years of the deprivation of leave as any claim beyond 3 years would be statute barred.
The claim for service pay is incapable of being awarded as section 35 of the Employment Act bars the Respondent who is a member of NSSF from such an award.
The Respondent acknowledged receipt of final dues per the discharge he signed on 24th April 2018. He therefore was not allowed to file the suit as he expressly waived the right to do so.
Issues in the judgment
#The judgment refers to an award of Kshs. 27,600/- for RFSSL SACCO shares in the Appellant's submissions, but that award is not listed among the reliefs the trial court granted at the outset, and the disposition does not address it expressly; it falls away with the setting aside of the entire judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Riley Falcon Security Services v Makinya (Appeal E016 of 2024) [2025] KEELRC 1690 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1690/eng@2025-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.