Riley Falcon Security Services Ltd v Maurice Oluoch Otieno

Memorandum of Appeal dated 13th January 2026 contending that the Learned Magistrate erred in law and fact by: i) Awarding the Respondent unpaid salary for the months of November and December 2022 when the same had in fact not been pleaded. ii) Awarding the Respondent unpaid salary for the month of April, May and June 2021 when in fact the Appellant had proved that the Respondent was not on duty and did not work for the months of April, May and June 2021 contrary to the nature of the private security industry where wages are calculated on the basis of a daily wage and therefore, he was not entitled to any pay for that period. iii)Awarding the Respondent half salary for the month of February 2022 yet the Respondent availed payslips to prove that salary for that month of February 2022 had been paid. iv)Awarding the Respondent severance pay in the sum of Kshs. 152,000/- yet the contract between the Respondent and the Appellant came to an end hence the issue of redundancy did not arise. Page 2 of 15

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v) Awarding the Respondent the sum of Kshs. 16,000/being one-month salary in lieu of notice whereas there was no basis to make the award in view of the evidence presented before court. vi)Awarding the claimant Kshs. 80,000/- as 5 months' compensation for unlawful termination whereas there was no basis to make the award in view of the evidence presented before the court. vii) Awarding the Respondent Kshs. 212,800/- as leave days earned and unpaid whereas there was no basis to make the award in view of the evidence presented before the Court. viii) Failing to appreciate the evidence tendered by both the Appellant and the Respondent and failing to analyse and apply the correct law thereby arriving at an erroneous conclusion that is not premised on evidence and the law. ix)Disregarding the submissions made and filed by the Appellant in arriving at the judgment in the case. x) Making an order that is contrary to the weight of the submissions, law and material on record. Page 3 of 15

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2. On the basis of these grounds the Appellant urges the court to set aside the Trial Court’s judgment and dismiss it with costs. It also seeks costs of the appeal. 3. The appeal was canvassed by way of written submissions. Appellant’s Submissions 4. In support of the appeal, the Appellant identifies the following issues for determination: (a) Whether the Trial Court erred in awarding the Respondent salary for November and December 2022; (b) Whether the Trial Court erred in awarding the Respondent salary for April, May and June 2021; (c) Whether the Trial Court erred in awarding the Respondent half salary for February 2022 despite documentary proof of payment; (d) Whether the Trial Court erred in awarding leave pay; Page 4 of 15

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(e) Whether the Trial Court erred in awarding severance pay in the absence of a finding of redundancy; and (f) Whether the Respondent was unlawfully terminated from employment. 5. On the award of salary for November and December 2022, the Appellant submits that the Respondent neither pleaded nor proved that his salary was unpaid for the said months. It further submits that the issue was neither canvassed at trial nor introduced through an amendment of the pleadings. The Appellant therefore urges the Court to set aside the award on this head, maintaining that a court is bound by the parties’ pleadings and cannot grant reliefs that do not flow from those pleadings. In support of this position, it relies on University of Nairobi v Onsembe [2022] KEELRC 12835 (KLR), where the Court affirmed that the purpose of pleadings is to provide parties with full information concerning the case to enable them to prepare for trial, and that a relief not founded on the pleadings ought not to be granted. Page 5 of 15

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6. As regards the award of salary for April, May and June 2021, the Appellant submits that the award was erroneous. It contends that the Respondent did not work during the said period and was therefore not entitled to salary. In particular, it draws the Court’s attention to the Respondent’s own admission at page 156 of the Record of Appeal that he was not in employment and did not work in April and May 2021. The Appellant consequently submits that the Trial Court erred by relying entirely on the letter dated 6th July 2021, which stated that the Respondent was unwell, while disregarding his own admission that he was not at work. 7. The foregoing notwithstanding the Appellant asserts that its payslips at page 94 of the Record of Appeal remained uncontroverted. It contends that the Respondent did not produce bank statements for the year 2021 to demonstrate that the salaries in question had not been paid. Accordingly, the Appellant maintains that there was no evidential basis for the Trial Court’s award under this head. Page 6 of 15

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8. On the award of leave pay, the Appellant submits that the claim was statute-barred. It contends that the Respondent’s claim, which covered a period of more than 22 years, from 2001 to 2023, was contrary to section 90 of the Employment Act, which limits claims arising out of a contract of service to three years from the date the cause of action accrued. The Appellant relies on Raymond Maluki & another v Fatuma Wambui Kamau & 2 others [2017] eKLR, where the Court held that a claim for accrued leave falling outside the three-year statutory limitation period was time-barred. It further relies on Osota Paul Osiemo v Intersecurity Services Limited [2021] eKLR, in which the Court similarly held that claims for leave accruing outside the applicable limitation period could not be sustained. Without prejudice to the foregoing, the Appellant submits that the evidence on record demonstrates that the Respondent proceeded on leave during his employment and, where leave was not taken, he was paid in lieu thereof. In support of this contention, it refers to the leave forms and payslips appearing at pages 90, 132, 133 and 135 of the Record of Appeal. Page 7 of 15

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9. On severance pay, the Appellant submits that the Respondent did not plead redundancy. It asserts that the severance pay is only payable under section 40(1)(g) of the Employment Act upon termination on account of redundancy. In support of its position, it highlights the Respondent’s pleading to the effect that his services were maliciously, unlawfully and illegally terminated without notice or reason. Additionally, the Appellant highlights that the court did not make a finding that the Respondent’s employment had been terminated on account of redundancy. To buttress its position the Appellant relies on Samuel Nyabeta Gesacho v Laban Munene [2021] KEELRC 1490 (KLR), where the Court emphasised that parties and the court are bound by pleadings and a court cannot adjudicate upon a claim or defence not raised by the parties. In any event, the Appellant submits that the Trial Court’s award of severance pay was inconsistent with its earlier finding that the employment contract was not binding upon the Respondent for want of his signature. It contends that, having found the contract non-binding, the Trial Court Page 8 of 15

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could not subsequently rely on a provision contained therein linking the Respondent’s employment to the KPLC contract as the basis for finding that a redundancy had occurred. The Appellant therefore urges the Court to set aside the award of severance pay. 10. On the question as to whether the Respondent was unlawfully terminated, the Appellant submits that the termination was lawful. It contends that the Respondent received the termination notice dated 1st March 2022, worked throughout the one-month notification period until 31st March 2022, and was duly paid for that period. On that basis, it submits that the claims for unlawful termination and pay in lieu of notice did not arise. The Appellant therefore urges the Court to allow the appeal, set aside the decision of the Trial Court, and award it the costs of both the appeal and the proceedings before the Trial Court. Respondent’s Submissions 11. In opposition to the appeal, the Respondent urges the Court to dismiss it with costs. He disputes the Appellant’s contention that his employment was intended to terminate Page 9 of 15

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simultaneously with the KPLC contract. In support of his position, he highlights several matters. First, he states that he had been employed since 2001 and that his employment was terminated on 1st March 2022, whereas the KPLC contract commenced on 31st March 2020. Second, he points out that the employment contract relied upon by the Appellant was dated 26th September 2014 and was stated to run until 25th September 2015, and that no subsequent contract was produced. Third, he submits that the contract dated 26th September 2014 had lapsed several years before the KPLC contract was executed on 31st March 2020 and, in any event, was unenforceable because it had not been executed by the parties. Finally, he maintains that he was not exclusively assigned to KPLC during the course of his employment. 12. Flowing from the foregoing, the Respondent submits that his termination was unlawful because the Appellant neither accorded him a hearing nor established a valid reason for terminating his employment. He relies on Alphonce Sulpice Mzenge v Mombasa Air Safari Ltd [2013] KEELRC 862 Page 10 of 15

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(KLR) for the proposition that sections 43 and 45 of the Employment Act require an employer to establish a valid and fair reason for termination and to afford the employee an opportunity to be heard before dismissal. He further draws attention to the Appellant’s witness’s admission that no hearing was conducted, asserting that he was simply issued with a termination letter and required to hand over. He also maintains that the termination letter did not disclose any reason for termination and made no reference to the KPLC contract. Relying on Peter Maroko Omondi v Pandya Memorial Hospital [2014] eKLR, in which the Court considered David Gichana Omuya v Mombasa Maize Millers Ltd [2014] eKLR and Alphonce Sulpice Mzenge v Mombasa Air Safari Ltd (supra), the Respondent submits that an employer cannot lawfully terminate an employee without cause merely by giving notice or payment in lieu of notice. The reasons for termination must be proved and must be valid and fair within the meaning of sections 43 and 45 of the Employment Act. Page 11 of 15

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13. As concerns the remedies, the Respondent submits that he was entitled to compensation equivalent to 12 months’ salary for unfair termination, in light of the circumstances of his termination and his lengthy period of service. He relies on Alphonce Maghanga Mwachanya v Operation 680 Limited [2013] eKLR, where the Court underscored that section 49(1)(c) of the Employment Act empowers the Court, upon finding that termination was unjustified, to award compensation of up to 12 months’ gross salary, taking into account the factors set out in section 49(4) of the Act. 14. On unpaid salary, the Respondent submits that it was properly founded. He asserts that his illness and absence from work did not justify the withholding of his salary. He highlights the Appellant’s witness’s admission that he ought to have been paid despite his illness, the Appellant’s confirmation in the letter dated 6th July 2021 that it was aware of the Respondent’s sickness between 25th July 2020 and 24th May 2021 and the fact that he remained an employee during that whole period and was unable to attend work because he was hospitalised. With respect to unpaid Page 12 of 15

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leave, the Respondent submits that the claim was justified because the leave application forms produced by the Appellant were neither made nor signed by him. He therefore maintains that the forms could not properly be relied upon to demonstrate that he had applied for or taken leave. 15. On service pay the Respondent submits that he is entitled to the same on the basis of section 35(5) of the Employment Act, which entitles an employee whose contract of service has been terminated to service pay for every year worked, subject to the terms prescribed by law. Disposition 16. The duty of a first appellate court is to reconsider and re- evaluate the evidence on record and draw its own conclusions, while bearing in mind that it did not have the benefit of seeing and hearing the witnesses testify. See the holding in Selle & another v Associated Motor Boat Co. Ltd & others [1968] EA 123 and Abdul Hammed Saif v Ali Mohamed Sholan (1955), 22 EACA 270. Page 13 of 15

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17. In this case the employee was terminated and seeks the payment of the sums due as his terminal benefits. The Trial Court is faulted for grant of salary for the months of November and December 2022 inter alia. It is asserted there was no pleading for this. The claim by the Respondent dated 11th September 2023 is before the Court and there was a plea for payment of salaries for November and December which were erroneously granted. The pleadings by the Claimant were inelegant and had errata in respect to the respective years and there was therefore no salary due for November and December 2022 as the Respondent was dismissed in March 2022. There is equally no salary that was due for the month of November and December 2023. In the premises the award of salary for November and December 2022 is erroneous and is to be deducted from the award. In respect to the other sums awarded, there was no proof of payment of the salary for March 2022. The Court returns that other than the 2 months that were included without basis – November and December 2022, the findings of the Trial Court are affirmed. Appeal succeeds to the extent the decretal sum due is reduced by the sum of Kshs. 26,000/-. As Page 14 of 15

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the appeal was only partly successful, each party will bear their own costs. It is so ordered. Dated and delivered at Kisumu this 24th day of September 2026 Nzioki wa Makau, MCIArb. JUDGE Page 15 of 15

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