Ndlo & 17 others v Brinks Security Services Limited (Appeal E272 of 2024) [2025] KEELRC 1928 (KLR)
The bottom line
#Kenya's Employment Court awarded 18 security guards leave, overtime, service pay and compensation, ruling employers must keep and produce accurate work records.
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 trial court erred in failing to decide on each head of claim (leave, overtime, service pay)
- 2.Whether the resignations of the 2nd, 5th, 6th, 9th, 14th and 15th appellants were coerced or forged
- 3.Whether the termination by way of redeployment notices and desertion notices was fair
- 4.Whether reliance on section 107 of the Evidence Act instead of sections 10(7) and 74 of the Employment Act was in error
- 5.Entitlement to notice pay, accrued leave, overtime, service pay and compensation
Key legal issues
#Validity of the resignations of the 2nd, 5th, 6th, 9th, 14th and 15th appellants
The explanation that they signed resignation letters as a precondition to payment of terminal dues was more plausible; they cannot claim notice pay or compensation but remain entitled to accrued dues
The court found the resignation-for-terminal-dues explanation more plausible given the KPC contract termination, the redeployment notice to Nairobi, and the new entity Falcon Limited taking over. Resignation was not truly voluntary, but it ended the employment, excluding compensation and notice pay while preserving accrued entitlements.
Termination of the remaining appellants by alleged desertion
Termination was unfair; the redeployment notice was unreasonable and the desertion notices were invalid for want of the section 41(2) process
The respondent failed to issue written contracts designating duty stations, making a redeployment notice requiring report to the head office unreasonable and contrary to fair labour practices. Desertion as gross misconduct required summoning the employees to explain under section 41(2); this mandatory step was overlooked, so the affected appellants were entitled to notice pay and compensation.
Burden of proof on leave, overtime and service pay
The employer is the custodian of records and must prove leave taken or compensated under sections 10(7) and 74 of the Employment Act; the court found the respondent's records manipulated
The court held that the Employment Act, not the Evidence Act, governs proof in employment disputes. The respondent's leave applications were unapproved and signatures at variance, leading the court to conclude the records were manipulated. Leave was limited to 33 days as unclaimed leave beyond 18 months cannot be recovered; overtime limited to 12 months as a continuing injury.
Service pay for security guards
Security guards under the Protection Security Wages Orders are entitled to service pay at 15 days for every full year worked, accruing even where statutory dues are remitted
The court noted the distinct Wage Orders for the security sector, under which service pay is negotiated at the end of employment and accrues notwithstanding NSSF remittances. For the four years worked (1 March 2018 to 28 February 2022) at ksh 10,500 monthly wage, each appellant is due ksh 21,000.
Legal principles established
#- Employment relationships are governed by the Employment Act; the employer bears the statutory duty to produce work records under sections 10(7) and 74 of the Employment Act, not the general evidential burden under the Evidence Act
- Overtime is a continuing injury under section 89 of the Employment Act and must be claimed within 12 months from the date of cessation
- Before treating desertion as gross misconduct under section 44, the employer must summon the employee to explain under section 41(2) of the Employment Act
- Redeployment requiring guards to abandon their designated duty station without a written contract is an unfair labour practice
Court orders
#- 1.Judgment in Voi CMELRC No. E003 of 2022 set aside
- 2.Each appellant awarded accrued leave pay of ksh 11,550
- 3.Each appellant awarded overtime pay of ksh 33,924
- 4.Each appellant awarded service pay of ksh 21,000
- 5.The 1st, 3rd, 4th, 7th, 8th, 10th, 11th, 12th, 13th, 16th, 17th, 18th appellants awarded compensation of ksh 31,500 each and notice pay of ksh 10,500 each
- 6.Appellants awarded costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Voi Magistrates' Court (CMELRC)
- Voi CMELRC No. E003 of 2022
- Jurisdiction invoked
- First appeal from the trial magistrate's court in employment and labour relations matters
Relief refused
#Compensation and notice pay for the 2nd, 5th, 6th, 9th, 14th and 15th appellants
Their employment ended through resignations; they cannot claim notice pay or compensation though they remain entitled to accrued dues
Salary arrears for February 2022
Appellants admitted the wages were paid
Costs
The appellants are awarded costs of 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.
Accordingly, judgment in Voi CMELRC No. E003 of 2022 is hereby set aside, and the following orders are issued;
a. Each appellant is awarded accrued leave at ksh 11,550, b. Each appellant is awarded overtime pay ksh. 33,924, c. Each appellant is awarded service pay ksh 21,000,
The appeal is successful, and the appellants are entitled to costs.
The respondent cannot sanitise its legal lapses through a notice of alleged desertion of duty.
The employer must prove that the employee took their annual leave or was compensated.
Issues in the judgment
#The respondent company is never named in the judgment text; the parties are referred to only as 'the appellants' and 'the respondent'
Orders d and e in the final orders are numbered inconsistently (d is followed by a sub-list headed i and ii), creating slight ambiguity in the structure of the award for the 12 appellants
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndlo & 17 others v Brinks Security Services Limited (Appeal E272 of 2024) [2025] KEELRC 1928 (KLR)", Case Analysis (2025). Voi CMELRC Appeal No. E003 of 2022 (appeal from Voi CMELRC No. E003 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1928/eng@2025-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.