Tick Security Services Limited v Mwandeto Kivelenge Nzano
The bottom line
#A Kenyan court cut a security guard's award but confirmed that employers cannot quietly drop injured workers off the payroll without a fair process.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Under what form of employment was the Respondent serving the Appellant at the time of separation?
- 2.Did the Respondent's employment come to an end by effluxion of time, by his desertion, or by termination at the instance of the Appellant?
- 3.If the Appellant terminated the employment, was the termination fair?
- 4.Were the reliefs awarded justified?
Key legal issues
#Form of employment: fixed-term or continuous indefinite service
The Respondent served continuously from about 1st July 2010 under an oral contract of indefinite duration; the alleged fixed-term contract was not proved.
The unsigned contract carried only the witness's signature, bore no employee consent as required by section 9(3), and referred to the novel coronavirus before its emergence, indicating post-event preparation. The disciplinary file, uninterrupted salary credits and absence of completion certificates all pointed to continuous service.
Irreconcilable defences: effluxion of time versus desertion
The two defences cannot co-exist; being bound by pleadings, the Appellant could not succeed on effluxion of time when it had pleaded desertion.
Effluxion ends the contract by its own terms without any party's act, while desertion presupposes a subsisting contract. Payment of salary beyond the alleged expiry date and the counterclaim for notice pay confirmed a continuing contract. Parties are bound by their pleadings and a court cannot decide on an unpleaded basis.
Proof of desertion
Desertion was not proved; the employer made no documented efforts to reach the employee, who was known to be hospitalised and in a wheelchair.
The assertion about contacting referees was bare, unnamed and undated; no call logs, letters or notice to resume were produced and the labour officer was not notified. The employer knew the employee's whereabouts and condition, so a night guard in a wheelchair was not an absconder but an employee unable to work.
Fairness of termination
The termination lacked both substantive justification and procedural fairness under sections 41, 43 and 45.
Having failed to prove desertion, the employer proved no valid reason. Its belief that no hearing is needed for desertion was mistaken law; a deserting employee does not dismiss himself and section 41 process, starting with efforts to reach him, remains mandatory.
Limitation of leave and overtime claims
Leave and overtime are continuing-injury claims; the twelve months under section 89 ran from cessation of employment on 30th April 2020, so the July 2022 suit was time-barred.
Following The German School Society v Ohany, a continuing injury arises from breach of a continuing obligation; leave denial and unpaid overtime persisted throughout employment and ceased at its end. Limitation goes to jurisdiction and must be determined whenever raised.
Legal principles established
#- Effluxion of time and desertion are irreconcilable bases for the end of employment; an employer cannot plead desertion and then rely on expiry of a fixed-term contract.
- Where the employer fails to produce a written contract signed or consented to by the employee, the burden of proving the alleged term falls on the employer under section 10(7).
- An employer asserting desertion must demonstrate reasonable efforts to reach the employee; a bare assertion is insufficient.
- Leave and overtime claims are continuing injuries; under section 89 the twelve-month limitation period runs from the cessation of the injury, at latest the end of employment.
Court orders
#- 1.The appeal is allowed in part.
- 2.The awards of Kshs. 26,118 for leave pay and Kshs. 52,239 for overtime are set aside and the claims for leave pay and overtime dismissed as time-barred under section 89 of the Employment Act.
- 3.The findings that the Respondent's employment was unfairly terminated, and the awards of Kshs. 17,412 notice pay and Kshs. 174,120 compensation under section 49(1)(c), are upheld; the judgment sum is varied from Kshs. 269,889 to Kshs. 191,532.
- 4.The orders of the trial court on interest, the costs of the suit and the certificate of service are undisturbed.
- 5.Each party shall bear its own costs of this 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 Mombasa (CMELRC)
- Mombasa CMELRC No. E416 of 2022
- Jurisdiction invoked
- First appeal from the subordinate court under the Employment and Labour Relations Court Act; appeal against judgment in Mombasa CMELRC No. E416 of 2022
Relief refused
#Appellant's challenge to the awards of notice pay and ten months' compensation
Findings on unfair termination and the reliefs were upheld; the effluxion-of-time premise was rejected.
Respondent's leave pay and overtime awards
Continuing-injury claims filed more than twelve months after cessation of employment, hence time-barred under section 89.
Costs
Each party shall bear its own costs of this 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.
Effluxion of time means that the contract of service came to an end by its own terms on the date it stipulated, by the mere passage of time and without any act of either party.
An employee cannot desert employment that has already ended.
A document that the employee never signed is, at most, an offer that was never shown to have been accepted.
A night guard confined to a wheelchair is not an employee who has absconded. He is an employee who is unable to work.
The claims for leave pay and overtime were therefore time-barred. The trial court had no jurisdiction to entertain them
The awards of Kshs. 26,118 for leave pay and Kshs. 52,239 for overtime made in the judgment of the trial court delivered on 3rd February 2025 in Mombasa CMELRC No. E416 of 2022 are set aside, and the claims for leave pay and overtime are dismissed as time-barred under section 89 of the Employment Act.
The judgment sum is accordingly varied from Kshs. 269,889 to Kshs. 191,532.
Each party shall bear its own costs of this appeal.
Issues in the judgment
#Judgment dated 30th September 2026, more than a year and a half after the memorandum of appeal of 13th February 2025; delivery date appears inconsistent with the appeal timeline.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tick Security Services Limited v Mwandeto Kivelenge Nzano", Case Analysis (2026). ELRC Appeal No. E014 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2743/eng@2026-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.