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ELRCPartially AllowedEmployment and Labour Relations Appeal (Mombasa) — judgment of 30 June 2025

Total Security Surveillance Limited v Wekesa (Appeal E146 of 2024) [2025] KEELRC 1930 (KLR)

Employment and Labour Relations Court
30 June 2025
1,799 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that a security guard who resigned cannot claim unfair termination compensation, and employers' unchallenged records will be believed.

What this practically means

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Executive summary

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This is an appeal against the judgment of the trial court in Mombasa CMELRC No. E045 of 2022 delivered on 21 June 2024, which found unfair termination and awarded the respondent 3 months' compensation of Ksh.132,953.40 and underpayment for 46 months of Ksh.86,153.40, with costs. The respondent had been employed as a security guard in March 2018 and his employment ended on 12 January 2022. He claimed notice pay, underpayment, house allowance, unpaid leave, 12 months' compensation, overtime and service pay. The employer contended that he was employed on annually renewed term contracts at a consolidated wage of Ksh.15,609 and that he resigned by notice dated 12 January 2022. On the first appeal, the court re-evaluated the evidence. It found that the employer had filed the contracts, notice of resignation and work records before the hearing and the respondent never challenged or replied to them; under sections 10(6) and (7) of the Employment Act the court must believe unchallenged employer records. The court held the respondent voluntarily resigned before the expiry of his term contract on 28 February 2022 and cannot seek notice pay or compensation, since an employee cannot be held to employment against his will. The claims for underpayment, house allowance, overtime and leave failed on the records, and service pay was excluded under section 35(6) of the Employment Act because the employer contributed to NSSF and NHIF. Allowing the appeal, the court set aside the trial court's judgment and awarded the appellant the costs of the appeal.

Questions the Court framed

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

  1. 1.Whether the trial court erred in finding unfair termination when the respondent had resigned on 12 January 2022
  2. 2.Whether the respondent was entitled to notice pay and compensation
  3. 3.Whether there was underpayment, house allowance, overtime, leave pay and service pay due to the respondent
  4. 4.What orders should issue on the appeal

Key legal issues

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01

Whether there was unfair termination

Holding

No; the respondent voluntarily resigned on 12 January 2022 before the end of his term contract, so the trial court's finding of unfair termination was erroneous

Reasoning

The employer filed contracts and a notice of resignation before the hearing, which the respondent never challenged or replied to until the hearing date. Under sections 10(6) and (7) of the Employment Act the employer must file work records, and the court must believe them where unchallenged. The learned magistrate erred in failing to address the resignation letter and term contracts on their merits.

p. 4
02

Entitlement to notice pay and compensation after resignation

Holding

A resigned employee cannot claim notice pay or 12 months' compensation; the remedy on resignation is to serve the notice period or pay in lieu

Reasoning

Upon an employee's resignation the option is to serve the notice period or pay in lieu, but the employee cannot be held back against his will. The respondent voluntarily terminated his employment before the end of his contract; the claims for notice pay and compensation were therefore unjustified and the trial court's award on those heads could not stand.

p. 4
03

Claims for underpayment, house allowance, overtime and leave

Holding

All rejected; the respondent earned Ksh.15,609 per month consistent with the Wage Orders, with house allowance included, no overtime worked, and leave fully taken

Reasoning

The contracts and payment statements confirmed wages of Ksh.15,609 against a Mombasa minimum wage for a day guard of Ksh.13,572.90 plus house allowance of Ksh.2,035.80. Attendance sheets showed no overtime and confirmed rest days; leave records showed 26 days, 19 days and 7 days fully spent.

p. 4
04

Claim for service pay

Holding

Not payable because the employer contributed to NSSF and NHIF; section 35(6) of the Employment Act excludes gratuity to avoid double payment

Reasoning

Although the Regulation of Wages (Protective Security Services) Order, 1998 provides for service/gratuity, contributing to the NSSF ensures social protection in retirement, and requiring additional payments would amount to double compensation. This exclusion under section 35(6) was upheld by the Court of Appeal and reaffirmed by the ELRC.

p. 4

Legal principles established

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  • On a first appeal the court must re-evaluate the evidence adduced before the trial court and draw its own conclusions
  • An employee who resigns cannot be held back against his will; forcing him to remain at work beyond notice would amount to slavery and servitude contrary to Article 30 of the Constitution
  • Unless the employer waives the notice period under section 36 of the Employment Act, resignation without notice is irregular
  • Payment of statutory dues to NSSF and NHIF insulates the employer from paying gratuity under the Wage Orders to avoid double payment (section 35(6) Employment Act)

Court orders

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  1. 1.Judgment in Mombasa CMELRC No. E045 of 2022 set aside
  2. 2.Appellant awarded costs of the appeal

The bench

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

majority

Wrote the judgment

On appeal from
Magistrates' Court (ELRC), Mombasa
Mombasa CMELRC No. E045 of 2022
Jurisdiction invoked
First appeal from the trial court in employment and labour relations matter (ELRC appellate jurisdiction)

Relief refused

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Respondent's awards of 3 months' compensation and underpayment for 46 months

The respondent voluntarily resigned before the end of his term contract; he cannot seek notice pay or compensation

p. 4

Claims for house allowance, underpayment, overtime, leave pay and service pay

Records show wages of Ksh.15,609 paid (no underpayment; house allowance included), no overtime worked, leave days fully spent, and NSSF contributions exclude service pay under section 35(6) of the Employment Act

p. 4

Costs

The appellant is awarded the costs of the appeal.

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, the Judgment in Mombasa CMELRC No. E045 of 2022 is hereby set aside. The appellant is awarded the costs of the appeal.
p. 4Final orders — appeal allowed with costs
The court must believe the records submitted by the employer, the appellant.
p. 3Evidentiary weight of unchallenged employer records
Upon his resignation due to focusing on personal issues, forcing him to remain at work beyond such notice would amount to slavery and servitude, which is contrary to Article 30 of the Constitution
p. 3Resignation and freedom from forced labour
Unless the employer waives the notice period under section 36 of the Employment Act, resignation without notice is irregular.
p. 4Notice requirement on resignation
Therefore, when the employer has chosen to contribute to this Fund on behalf of the employee, it would be considered double compensation to require the employer to make additional payments towards the employee's social protection.
p. 4Service pay and NSSF contributions

Issues in the judgment

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minor

Judgment does not state the appeal case number or the parties' full names, and the magistrate's name in the court below is not given

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Total Security Surveillance Limited v Wekesa (Appeal E146 of 2024) [2025] KEELRC 1930 (KLR)", Case Analysis (2025). Employment and Labour Relations Appeal (Mombasa) — judgment of 30 June 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1930/eng@2025-06-30

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