https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2397

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **APPEAL NO. E395 OF 2025** **ALFRED OUMA OKOSO APPELLANT** *VERSUS* **PINKERTON’S (KENYA) LIMITED RESPONDENT** **[Being an appeal from the judgment of Hon. Aziz Ajwang delivered on 14 October 2025 in Milmani MCELRC Cause No. E1422 of 2024]** **JUDGMENT** The appeal arises from the judgment delivered on 14 October 2025 in Milmani CMELRC No. E1422 of 2024. The appellant, aggrieved by the judgment, filed the appeal on grounds: 1. The learned Magistrate erred in law and fact in failing to grant unpaid overtime and holidays worked despite there being no contention as the appellant having worked overtime and on holidays as particularized in the claim. 2. The learned magistrate erred in law and fact in failing to consider the evidence adduced by the claimant in support of the claim for overtime, holidays and day offs thus arrived at a wrong finding. 3. The learned magistrate erred in law and fact in holding that the appellant had failed to lay a basis for an award of overtime pay, untaken holidays and off days. 4. The learned magistrate erred in law and fact in holding that the appellant had failed to prove his clam for overtime, worked public holidays and off days against the weight of the evidence adduced. The supplementary Memorandum of Appeal sets two grounds: 1. The learned Magistrate erred in law and fact in failing to grant the appellant damages for unlawful termination of employment. This is despite the learned Magistrate having found that the claimant [appellant] was unlawfully terminated and despite the appellant’s specific prayer for damages in compensation for the unlawful termination. 2. The learned Magistrate erred in law and fact in failing to consider or address the appellant’s prayer for damages for unlawful termination despite the appellant having expressly pleaded the same, submitted on the same and the same having been an issue for determination. For these reasons, the appellant seeks that the appeal be allowed, with an award of damages for unlawful termination of employment amounting to 12 months' gross wages at Ksh. 234,034.1 with costs. The background to the appeal is a claim filed by the appellant before the trial court. His case was that on 27 September 2023, the respondent employed him as a night security guard and he worked until 1 June 2024 when his employment was unfairly terminated. Without any explanation, the respondent withheld the appellant's wages for 2 months in April and May 2024. He wrote to the respondent seeking the payment, but the respondent opted to terminate employment. at the time, the appellant was earning Ksh. 10,215 per month contrary to the Wages Orders. The appellant had worked for 8 months and was entitled to 26 leave days, but he worked without pay. as a security guard, the appellant worked during public holidays and was entitled to compensation. He was not provided with housing or pad a house allowance. Work hours were from 6 pm to 6 am without compensation of overtime contrary to the wages Orders. At the end of employment, their uniform deductions were not refunded, including service gratuity. The claim was for payment of terminal dues: 1. Salary underpayments for 8 months Ksh. 40,464. 2. House allowance Ksh. 15,263 3. Unpaid salaries for 2 months Ksh. 39,005.70. 4. Unpaid overtime Ksh. 72,835.40 5. Untaken off days Ksh. 15,602.28 6. 26 leave days Ksh. 11,268.31 7. Service gratuity for 8 months Ksh. 7,801.14 8. 12 Public holidays at work Ksh. 15,602.28 9. 12 months compensation Ksh.234,034.20 10. Costs of the suit. In response, the respondent denied the claims, save that the appellant resigned from his employment on 26 May 2026. This was voluntary and cannot be treated as unfair termination of employment. The appellant was advised by the operations controller, Mr. Omusonga, of the delay in salary payment for April 2024, but he opted to resign in May 2024. A one-month delay in salary payment is not uncommon in large corporations and even in the government, and hence the reason for resignation was not justified. The salary for April 2024 was thus not paid, which was eventually paid together with the May 2024 salary. Instead of the appellant waiting, he opted to resign, and his claim is in bad faith. The wage paid was Ksh. 10,215 upon statutory deductions. Having worked for 8 months, no leave days were earned during the year. As a night guard, the appellant had one day off each week and was not at work during public holidays. The salary paid was inclusive of the house allowance as allowed under the employment contract. The contract provided for 12 working hours a day, and being a voluntary contract, the appellant cannot justify a claim for overtime pay. Upon resignation, the appellant cannot urge a claim for unfair termination of employment and thus seek compensation; rather, it would be unjust enrichment. On 14 October 2025, the trial court delivered judgment and held there was unfair termination of employment and allowed the following awards: 1. Salary underpayments Ksh. 51,088. 2. Unpaid house allowances Ksh. 20,350. 3. Unpaid salaries Ksh. 30,30,645. 4. Untaken leave days Ksh. 6,218. 5. Costs of the suit and interest. The appellant, aggrieved by the judgment, filed an application dated 30 October 2025 seeking a review of the judgment of the learned Magistrate delivered on 14 October 2025. The learned Magistrate heard the application, delivered a ruling on 25 February 2026, and dismissed it. On appeal, the appellant submitted that they were heard in accordance with Rule 59 of the Employment and Labour Relations Court (Procedure) Rules. The appellant’s case was on the basis that he was employed as a night security guard and worked from 27 September 2023 until he was forced to resign on 1 June 2024 due to non-payment of his wages for April and May 2024. He was forced to resign through notice dated 26 May 2024. His wage was Kshs. 10,215, which was an underpayment; there was no house allowance, overtime pay, off days, public holidays or leave pay. In analysing the record, the learned magistrate made a finding that there was unfair termination of employment but failed to make an award thereof, which was in error. Despite making a finding that the appellant was entitled to overtime, rest days, leave, house allowances and terminal dues, the trial court failed to award as pleaded and in terms of the Wages (Protective Security Orders) 1998, sections 6 and 7. The hours of work are 52 per week, yet the appellant worked 72 hours per week. There was no rest day allocated, nor any compensation therefor. The appellant addressed the public holidays he was at work, yet the learned magistrate failed to assess and make an award accordingly. The appellant thus submitted that the claims made should be reviewed and awarded with costs. The respondent submitted that the court on appeal should not interfere with the findings of the rial court which had the benefit of observing witnesses before it. The appellant has not discharged its burden that the learned magistrate failed to apply the law correctly hence the judgment. The respondent admits that the learned magistrate, having made a finding that there was unlawful termination of employment ought to have addressed the prayer for compensation. This question should be reviewed. However, the claim for 12 months compensation is not justified since it is discretionary and based on the trial court assessment of the facts. The appellant has not demonstrated why he should be awarded the highest award of 12 months yet he worked under 8 months only. He resigned from his employment and thus should be treated in that regard in assessing the compensation payable under section 49 of the Employment Act. The respondent submitted that the appellant worked from 6 pm to 6 am shift. The 12 hours shift was expressly agreed under the contract which the appellant accepted without complaint. Although the Wages Orders allow 52 hours, upon the mutual agreement of the parties, the appellant agreed to a 72 hours shift. Regarding the claim for rest days, the appellant did not discharge his burden as he had in **Moriema Cottages Limited v Manjewa [2024] KEELRC 1490**. Thus, the claim made in this regard, including work during public holidays, once agreed in the employment contract, the appellant cannot turn back and seek to be paid upon resignation. **Determination** This being a first appeal, the court is allowed to review the record, reassess the findings and make a conclusion. However, take into account that the learned magistrate had the chance to see and hear the witnesses. In this case, the learned magistrate opted to rely on Rule 59 of the Court Rules. No evidence was called. To begin with, the appellant filed an application for review dated 30 October 2025, with a ruling delivered on 25 February 2026 dismissing the application. The appeal was filed on 14 November 2025. The appellant thus knew of the application for review yet proceeded to file the appeal herein. It is a rule of thumb that upon a review, an appeal is not allowed. Such rule has served well over time. The rationale is that one should not conflate issues. Once a review application has been addressed as the learned magistrate did in the ruling delivered on 25 February 2026, unless the appeal relates to that application, the same judgment subject of appeal cannot be re-relitigated through an appeal. Such a rule has served justice well. In **David & 2 others v Bakaya [2025] KEHC 12790 (KLR),** the court held that the power of review is available only when there is an error apparent on the face of the record. Review proceedings are not an appeal. The review must be confined to error apparent on the face of the record, and re-appraisal of the entire evidence or how the trial court applied or interpreted the law would amount to exercise of Appellate Jurisdiction, which is not permissible. The appellant’s application dated 30 October 2025 was thus seeking to have the trial court review its findings on the basis that *although the court found that the claimant had been wrongfully terminated/constructively dismissed, it omitted to assess and award general damages/compensation under section 49 of the Employment Act.* Thus, the learned magistrate was invited to reassess and award general damages/compensation, and the justification therefor. Before such application could be addressed, the appellant filed this appeal. Thus, in **Kenya Human Rights Commission & 8 others v Nchebere;** **Law Society of Kenya & 2 others (Interested Parties) [2025] KEHC 2829 (KLR),** the court appreciated that one cannot have an appeal and an application for review under the same matter. It was an outright abuse of judicial process to pursue both an appeal and an application for review. The proper application of section 80 of the [Civil Procedure Act](https://new.kenyalaw.org/akn/ke/act/1924/3) as read with Order 45 of the Civil Procedure Rules is that a party could not have it both ways. Either an appeal or an application for review. The court thus emphasised: *By filing an application for leave to appeal and at the same time seeking to review the same decision they intend to appeal against, the applicants are pursuing both processes concurrently in contravention of the above provisions. On this ground, their plea for review collapses.* An appeal and an application for review cannot be pursued concurrently or one after the other. In **Ujaga Singh v Runda Coffee Estates Ltd [1966] E.A 263**I, relied upon in the case cited above, these principles were addressed as follows: *The facility of review under Order 44 of the Civil Procedure Rules is available to a person who is aggrieved by an order or decree which is appealable but from which no appeal has been preferred or from which no appeal is allowed. …* Therefore, the multiple applications for both review and appeal result in an abuse of the court process. Although the respondent did not address this fact, the court cannot proceed with the appeal as couched in the record. Abuse of court process by filing multiple review proceedings and then appeals leads to a waste of court time. The appeal should fail on these grounds. However, before conclusion, the basis of the claim before the trial court was the appellant's resignation from his employment after the respondent failed to pay wages due in April and May 2024. The respondent admitted that there was a delay in the payment of salary, leading to the appellant's resignation. The justification for the delay is that the respondent is a big corporation and such salary delays are common. Even in the case of the government, there are salary delays. However, under section 44(3) of the Employment Act, where a party to the employment contract fails to meet its end of the contract, there is a fundamental breach thereof. The offended party is no longer bound under such contract. Under sections 17, 19, and 19 of the Employment Act, the employee is entitled to payment of due wages at month-end. Where such wages are not paid on time, there is a fundamental breach of the employment contract. The employee who is made to report to work without pay is placed at a huge disadvantage and left without option but to abandon such employment and claim constructive dismissal or breach of the employment contract under section 44(3) of the Employment Act. In **Kiprop v Melchizedek Hospital Limited [2023] KEELRC 3090 (KLR),** the court held that non-payment of salary allows the employee to claim under constructive dismissal. The affected employee has no choice but to abandon his employment since the employer has not met its bargain in failing to pay the due wage. In **Maina v Mediheal Group of Hospitals [2025] KEELRC 2740 (KLR),** the court held that non-payment of salary amounts to such a repudiatory breach. In analyzing several cases, the court held: *… Non-payment of salary to an employee who is working as expected and directed is such a fundamental breach of the contract of employment as it subjects an employee to unfair labour practices under Article 41 of the Constitution. Further, non-payment of salary or wages as and when the same falls due and payable subjects an employee to servitude, undue suffering, and indignity. An employer who is unable to pay working employees shall take remedial measures at the earliest opportunity. Such an employer may negotiate on a mutually agreeable structure of offsetting such arrears or even declare the affected employees redundant under Section 40 of the Act. It is therefore the finding and holding of this court that the resignation of the claimant was neither voluntary nor of free-will but was occasioned by the unbearable working environment that was created by the respondents through non-payment of the monthly salary for three consecutive months as alluded to above. The respondents subjected the claimant to unfair working conditions and practices and failed to meet their legal obligations as employers. They breached a fundamental term of the contract. The evidence of non-payment of the said salaries is on record with the respondents even making a failed attempt to pay the same two years after termination in 2017 when this cause was pending in court. The court has no difficulties in declaring that the respondents by their conduct constructively dismissed the claimant as pleaded. …* Therefore, it is not sufficient for an employer to cite that big corporations do not pay wages in time similar to the government. This conduct is unlawful. It is contrary to section 17 and 18 of the Employment Act. Once committed, it amounts to a fundamental breach of the employment contract. The subject employee, such as the appellant, is allowed the right to resign. However, the appellant did damage to his case: instead of moving with his appeal as herein done, upon delivery of the judgment on 14 October 2025, he filed an application for review of the judgment on 30 October 2025. A while later, on 14 November 2025, he filed this appeal. He cannot have it both ways. One must give way to the other. The application for review has since been addressed in the ruling delivered on 25 February 2026 while this appeal was pending. Such ruling shall suffice. **Accordingly, the appeal is hereby dismissed. The appellant shall meet the costs due to the respondent in this appeal.** **Delivered in open court this 14th day of August 2026** **M. MBARŨ,** **JUDGE** **In the presence of:** Court Assistant: Kemboi ……………………………………………… and …………………………………..………