https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1612

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NYERI** **ELRC APPEAL NO. E004 OF 2026** **BOB MORGAN SERVICES LIMITED……………..……………APPELLANT** **VERSUS** **BERNARD ICHODO OMULEPU……………………………RESPONDENT** *(Being an Appeal from the entire Judgment and decree of the Magistrate’s Court at Embu (Hon. Robert G. Mundia) (Mr.) delivered on 11th November 2025 in MC. ELRC E001/2024)* **JUDGMENT** 1. The Respondent instituted proceedings before the Magistrate’s Court at Embu through a Memorandum of Claim filed in *CMELRC Cause No. E001 of 2024, Bernard Ichodo Omulepu v Bob Morgan Services Limited.* 2. In his claim, the Respondent averred that he was employed by the Appellant since 2001 as a security guard and was promoted to the position of Field Officer in 2014. At the time of his retirement, he was earning a monthly salary of Kshs 22,470.00. 3. The Respondent further stated that after rendering 20 years of service to the Appellant, he applied for early retirement on medical grounds, which application was approved. 4. According to the Respondent, prior to his retirement, he worked continuously on both day and night shifts, 7 days a week, serving as the sole Field Officer for the entire Embu County area. He asserted that, in addition to his duties as a Field Officer, he was required to perform the functions of Area Manager, Alarm Response Rider, and Crew Commander, as the Appellant failed to assign other employees to undertake those roles. 5. The Respondent contended that despite discharging the responsibilities of the three additional positions, the Appellant failed to compensate him accordingly. He further alleged that he was neither remunerated for overtime worked nor granted rest days, contrary to the provisions of the Employment Act and the principles of fair labour practices. 6. The Respondent averred that upon processing his early retirement, the Appellant computed his terminal dues at **Kshs 277,685.00.** 7. He further asserted that prior to his retirement, he had raised concerns with the Appellant regarding compensation for the additional duties performed and the extra hours worked, and that such remuneration was expected to be factored into his terminal benefits but was ultimately omitted. 8. It is against this background that the Respondent sought a total sum of **Kshs 5,151,343.07,** comprising claims for unpaid overtime, salary for duties allegedly performed as Area Manager, Crew Commander, and Alarm Response Driver, duty allowance, leave pay, uniform deposit, gratuity, and compensation for accrued off days. 9. In reply to the Claim, the Appellant filed a Statement of Response dated 16th April 2024, in which it admitted that the Respondent had applied for and was granted early retirement on medical grounds. The Appellant, however, denied liability and contended that the Respondent had never lodged any complaint or grievance concerning the alleged underpayment, additional duties, or overtime through its established grievance-handling procedures. 10. The Appellant further averred that the Respondent was not entitled to overtime pay, maintaining that throughout his employment as a Field Officer, he worked 8 hours per day, was entitled to one rest day per week, and enjoyed 26 days of annual leave. 11. The Appellant further denied that the Respondent performed the duties of Crew Commander, Area Manager, or Alarm Response Driver, asserting that his role remained that of a Field Officer as set out in his letter of appointment. 12. In the Appellant’s view, the claim was vexatious and an attempt at unjust enrichment, maintaining that the Respondent served solely as a Field Officer until his retirement on medical grounds. On that basis, the Appellant urged the trial Court to dismiss the claim with costs. 13. The matter proceeded for hearing during which the Respondent testified in support of his case. The Appellant, on its part, called 2 witnesses, namely its Chief of Staff, *Dennis Michieka*, and its Regional Manager, *Grace Miriti*. Following the close of the hearing and cross-examination of the witnesses, the parties filed written submissions. 14. Upon considering the pleadings, evidence, and submissions on record, the learned trial Magistrate delivered judgment on 11th November 2025. In its judgment, the trial Court observed that DW2 had admitted during cross-examination that she delegated certain managerial duties to the Respondent because she could not be present in all locations at the same time. As such, the Court found that the Respondent had undertaken duties of an Area Manager and consequently awarded him Kshs 1,622,666.67, calculated on the basis of a monthly salary of Kshs 40,000.00 for 1,217 days. **The Appeal** 1. Being dissatisfied with the Judgment of the trial Court, the Appellant preferred the instant Appeal, setting out the following 5 grounds in support thereof: 2. **THAT the Learned Trial Magistrate erred in law and fact in awarding the Claimant the Manager’s salary, a claim that was not specifically proved.** 3. **THAT the Learned Trial Magistrate erred in law and in fact in awarding the Claimant the Manager’s salary based on the manager’s salary of Kshs 40,000/-, which amount was not proved.** 4. **THAT the Learned Trial Magistrate erred in law and fact in awarding the Claimant the Manager’s salary based on 1,217 days which specific days were neither pleaded nor proved.** 5. **THAT the Learned Trial Magistrate erred in law and fact in awarding the Claimant the Manager’s salary in the sum of Kshs 1,622,666.67 without any basis in law or fact.** 6. **THAT the Ruling (sic) of the Learned Trial Magistrate is against the law and established case law.** 7. To this end, the Appellant has urged this Court to set aside the award of Kshs 1,622,666.67 granted to the Respondent as salary for the position of Manager and to award it the costs of both the proceedings before the trial court and this Appeal. **The Submissions** 1. The Appeal was disposed of by way of written submissions. The Appellant submitted that there was no evidence before the trial Court demonstrating that the Respondent’s terms of employment had changed from those of a Field Officer to those of an Area Manager. According to the Appellant, the Respondent was required, at the very least, to establish that there had been a mutual agreement between the parties or a formal variation of his contract of employment elevating him from the position of Field Officer to that of Area Manager. 2. Relying on the decision in ***Muema v Kenga Equatorial Hotels Limited t/a Mombasa Continental Resort [2023] KEELRC 1236 (KLR),*** the Appellant argued that the Respondent failed to prove any alteration of the terms of his engagement. In the same vein, the Appellant contended that there was no evidence showing that the Respondent had ever been appointed to, offered, or formally assigned the position and duties of Area Manager. 3. The Appellant further challenged the award made by the trial Court on the basis of a monthly Manager’s salary of Kshs 40,000.00, submitting that the figure lacked any evidential or verifiable foundation. 4. The Appellant further submitted that the specific periods for which the Respondent claimed additional remuneration were neither specifically pleaded nor proved. In support of this argument, reliance was placed on the decision in ***David Bagine v Martin Bundi [1997] KECA 54 (KLR).*** 5. In the Appellant’s view, the award of a manager’s salary in the absence of any contractual, factual, or legal basis amounted to rewriting of the parties’ contract of employment by the trial Court. 6. On his part, the Respondent submitted that he was transferred to the Embu area on 28th April 2018 and remained stationed there until his retirement on 24th December 2021. He maintained that, as a Field Officer, he was the highest-ranking officer of the Appellant within the Embu region during that period. 7. The Respondent further contended that many of the duties he performed prior to his retirement fell outside the scope of his responsibilities as a Field Officer. 8. Citing the cases of ***Parmar v African Express Airways [2023] KEELRC 1028 (KLR)*** and ***Mbugua v Principal/Secretary, Board of Management, Cheptoroi Secondary School [2022] KEELRC 4165 (KLR),*** the Respondent argued that he had sufficiently demonstrated that he undertook additional responsibilities while serving in Embu. On this score, he urged this Court not to interfere with the findings and award of the trial Court and to dismiss the Appeal. 9. The Respondent further submitted that he was properly compensated by the trial Court because it had been mutually understood between him and the Appellant that he would temporarily undertake all operational duties within the Embu station, including managerial functions that fell outside his designated role as a Field Officer, pending the deployment of an Area Manager. He contended that no such officer was ever deployed, hence he continued performing those managerial duties until his retirement. **Analysis** **and Determination** 1. This being the first appeal, the Court is duty-bound to re-evaluate and re-analyse the evidence on record with a view to arriving at its own independent determination on whether the decision of the trial court ought to be upheld. In so doing, the Court must bear in mind that it neither saw nor heard the witnesses testify and should make due allowance for that. (See ***Selle v Associated Motor Boat Co. Ltd & Others [1968] EA 123****).* 2. Having considered the Record of Appeal, the rival submissions, and the applicable law, the Court finds that the singular issue falling for determination is whether the award made by the trial Court is sustainable. 3. The only relief granted by the trial Court was an award of **Kshs 1,622,666.67,** being salary, the Court found was payable to the Respondent as an Area Manager, calculated at the rate of Kshs 40,000.00 per month over a period of 1,217 days. 4. In his Memorandum of Claim, the Respondent pleaded that he had, among other responsibilities, performed the duties of an Area Manager and that he was never remunerated for undertaking those additional duties. 5. There is no dispute that the Respondent’s claim was in the nature of a special claim. Consequently, he was bound not only to specifically plead the claim but also to strictly prove it. 6. It is notable that, notwithstanding the Respondent’s assertions, he did not adduce evidence before the trial Court demonstrating that he performed the duties of an Area Manager during the period claimed. For starters, the Respondent made a general claim and did not identify with specificity the functions he allegedly discharged as an Area Manager over and above his designated responsibilities as a Field Officer. It is worth pointing out that the Respondent has sought to enumerate such duties in his submissions on appeal. However, it is trite that submissions cannot take the place of evidence, and in any event, those alleged duties remained unproven. 7. Equally, it is notable that the Respondent did not establish the basis upon which he arrived at the figure of Kshs 40,000.00 as the monthly salary payable to an Area Manager within the Appellant’s organization. For instance, no salary scales, pay structures, employment records, or other documentary evidence were produced to demonstrate the remuneration attached to that position. As it stands, there was no evidential foundation for the claimed monthly salary of Kshs 40,000.00. 8. Besides the Respondent’s failure to prove the claim, it is also evident that the suit, in so far as it related to the alleged underpayments, was already statute-barred by the time it was filed. Why do I say so? By asserting that the remuneration paid to him did not correspond with the nature and extent of the duties he allegedly performed, the Respondent was, in essence, advancing a claim for underpayment of wages. Indeed, the Respondent expressly pleaded underpayment in his Memorandum of Claim. 9. Claims founded on underpayment of wages constitute continuing injuries within the meaning of employment law. A continuing injury is one that does not arise from a single isolated act or omission, but rather from a recurring or ongoing breach that persists over a period of time. Such a cause of action accrues continuously for as long as the alleged breach subsists. 10. According to **Black’s Law Dictionary (9th Edition p.856),** a continuing injury is defined as: ***“An injury that is still in the process of being committed.”*** 11. In addressing the concept of a continuing injury, the Court of Appeal in ***The German School Society & another v Ohany & another [2023] KECA 894 (KLR)*** held as follows: ***“The principles underlying continuing wrongs and recurring/successive wrongs have been applied in employment disputes. A ‘continuing wrong’ refers to a single wrongful act that results in a continuing injury, while ‘recurring or successive wrongs’ are those that occur periodically, with each instance giving rise to a distinct and separate cause of action.”*** 1. Therefore, in the present case, the alleged breach in relation to the salary paid to the Respondent constituted a continuing wrong, accruing on a monthly basis whenever he received remuneration which, in his view, was not commensurate with the nature of his duties. Accordingly, so long as the Respondent remained in employment, a fresh cause of action arose each month upon the alleged underpayment. 2. ***Section 89 of the Employment Act*** provides for the limitation period applicable to employment claims, including those founded on continuing injury, in the following terms: ***“Notwithstanding the provisions of section 4(1) of the Limitation of Actions Act (Cap. 22), no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained of, or in the case of a continuing injury or damage, within twelve months next after the cessation thereof.”*** *(Emphasis added)* 1. In essence, Section 89 of the Employment Act provides a limitation period of 12 months in respect of claims founded on a continuing injury, calculated from the date on which the injury ceases. For these purposes, cessation occurs when the alleged breach or wrongful act comes to an end. 2. It follows, therefore, that any claim premised on a continuing injury must be instituted within 12 months from the date on which the alleged breach or injury is brought to an end. 3. In ***G4S Security Services (K) Limited v Joseph Kamau & 468 others [2018] eKLR,*** the Court of Appeal considered the effect of ***Section 89 of the Employment Act*** in relation to continuing injuries and stated as follows: ***“Regarding a ‘continuing injury’, the proviso to Section 90 of the Employment Act requires that the claim be made within twelve months next after the cessation thereof. Further, upon the claimant’s dismissal, any claim based on a continuing injury ought to have been filed within one year, failing which it became time-barred.”*** 1. In the instant case, it is apparent that, pursuant to the letter dated 16th November 2022, the Respondent’s retirement took effect on 1st December 2022. That date, therefore, marks the cessation of the alleged continuing injury. Consequently, in terms of the second limb of ***Section 89 of the Employment Act,*** the Respondent was required to institute any claim founded on the alleged underpayment on or before 1st December 2023. 2. The present suit, however, was filed on 29th January 2024, well outside the prescribed limitation period for claims based on continuing injury. It follows, therefore, that the claim for underpayment was statute-barred at the time of its institution. 3. In view of the foregoing, the Respondent’s claim for underpayment could not be sustained, having been filed outside the statutory limitation period prescribed under ***Section 89 of the Employment Act.*** 4. Admittedly, the issue of limitation was not raised before the trial Court and was not addressed in the judgment. Nonetheless, as the issue of limitation of time goes to the root of a court’s jurisdiction, this Court is enjoined to take cognisance of it. 5. It is trite that a claim instituted outside the statutory period deprives the Court of jurisdiction to entertain it. It therefore follows that the Respondent’s claim, being founded on a continuing injury and having been instituted more than 12 months after cessation of the alleged breach, the trial Court lacked jurisdiction to hear and determine it. **Orders** 1. In the final analysis, the Appeal succeeds, and the award of **Kshs 1,622,666.67** is hereby set aside. 2. Each party shall bear its own costs in both this Court and at the trial Court. **DATED, SIGNED** and **DELIVERED** at **NYERI** this **12th** day of **June** 2026. **………………………………** **STELLA RUTTO** **JUDGE** **In the presence of:** For the Appellant Mr. Njuguna For the Respondent Mr. Musyoka Court Assistant Ndati **ORDER** In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court had been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. **STELLA RUTTO** **JUDGE**