https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/473

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT MOMBASA** **MAGISTRATES COURT CIVIL** **MCELRC CAUSE NO. E516 OF 2025** **CHRISPUS MWAHANGA CHARO...……….….……...……………………….CLAIMANT** **VERSUS** **TEXAS ALARMS (K) LIMITED…………………….………………………….RESPONDENT** **JUDGEMENT** **Introduction** 1. The Claimant instituted these proceedings through a Memorandum of Claim dated 7th August 2025. He alleged that the Respondent unlawfully and unfairly terminated his employment and failed to pay him his contractual and statutory dues. 2. The Claimant sought the following reliefs: 3. A declaration that his summary dismissal was unlawful and unfair; 4. One month’s salary in lieu of notice — Kshs.16,959; 5. Salary underpayment — Kshs.158,360; 6. Unpaid house allowance — Kshs.101,754; 7. Accrued leave pay — Kshs.23,742.60; 8. Compensation equivalent to twelve months’ salary — Kshs.203,508; 9. Costs and interest The total monetary claim was pleaded as Kshs.521,282.60. 1. The Respondent opposed the claim through its Memorandum of Response. It denied terminating the Claimant and averred that he voluntarily resigned on 6th December 2024 after obtaining another employment opportunity. 2. The Respondent further contended that the Claimant deserted duty from 3rd December 2024, submitted a written resignation, completed the clearance process, requested that his final dues be deposited into his Tabasuri SACCO account and was issued with a Certificate of Service. 3. The matter proceeded under Rule 59 of the Employment and Labour Relations Court (Procedure) Rules, 2024, on the basis of the pleadings, witness statements, documents and written submissions filed by the parties. Rule 59 permits the Court, either by agreement of the parties or on its own motion, to determine a suit from the pleadings, affidavits, documents and submissions on record. 4. No oral testimony was taken and none of the makers of the documents was subjected to cross-examination. The Court must therefore determine the dispute from the documentary record and evaluate the weight, consistency and probative value of the material filed by each party. **The Claimant’s case** 1. The Claimant’s case was that the Respondent employed him on or about 6th August 2022 on an indefinite contract. He stated that he was initially employed as a Day Security Guard and was subsequently promoted to the position of Crew. 2. He claimed that his gross salary was Kshs.13,000 per month, exclusive of house allowance, and that his salary was paid through a company SACCO known as Tabasuri SACCO. 3. His duties included guarding the Respondent’s clients’ premises and attending to emergencies whenever alarms went off during the day or at night. 4. The Claimant stated that he worked diligently, notwithstanding that the Respondent allegedly underpaid him, and that he never proceeded on annual leave throughout his employment. 5. According to the Claimant, on or about 30th November 2024, he approached his commander, Mr Petro Odengo, and requested an off-day on Sunday, 1st December 2024, to attend church. Mr Odengo allegedly declined that request and informed the Claimant that he should take his off-day on Monday, 2nd December 2024 instead. 6. The Claimant stated that he complied with those instructions and worked both the day and night shifts on Sunday, 1st December 2024. He left work on the morning of Monday, 2nd December 2024 after the night shift and returned in the evening for another night shift. 7. Upon reporting for the night shift, Mr Odengo allegedly informed him that all the vehicles dispatching guards to different locations were full. He was instructed to go home and report to the Human Resource Manager’s office. 8. The Memorandum of Claim states that the Claimant was to report on Tuesday, 3rd December 2024, whereas his witness statement states that he reported to the Human Resource office on Wednesday, 4th December 2024. 9. The Claimant stated that when he went to the Human Resource office, he was informed that the Human Resource Manager, Mr Ben Aduda, was on leave. An assistant identified as Madam Janet allegedly instructed him to return after three weeks. 10. He returned in January 2025, whereupon Mr Aduda allegedly informed him that his employment had been terminated with immediate effect and that he should return the company uniform. 11. The Claimant maintained that he had not committed any offence, had not received notice of any allegations against him and had not been taken through a disciplinary hearing. 12. He alleged that when he requested his terminal dues, Mr Aduda told him to wait for payment in due course, but the payment was never made. 13. The Claimant consequently maintained that the Respondent terminated his employment without notice, valid reason or fair procedure. **The Respondent’s case** 1. The Respondent admitted employing the Claimant as a Security Guard on 6th August 2022 under employee number 84827. It stated that the terms of employment were contained in a written letter of appointment dated 6th August 2022. 2. The Respondent further stated that the Claimant was promoted to the position of Crew on 3rd February 2024 and assigned a new employee number, 33270. The Respondent denied terminating the Claimant. Its case was that the Claimant deserted duty from 3rd December 2024 and subsequently submitted a handwritten resignation letter dated 6th December 2024, stating that he had obtained another employment opportunity. The Respondent stated that it acknowledged and accepted the resignation through its letter dated 6th December 2024. 3. It further maintained that the Claimant: Completed the clearance process; Returned company property; Requested that his final dues be deposited into his Tabasuri SACCO account; Was paid his final dues; and Was issued with a Certificate of Service. 4. The Respondent denied the claims for notice pay, compensation, underpayment, unpaid house allowance and accrued leave. It maintained that the Claimant’s wages were progressively revised in accordance with the applicable minimum wage requirements, that house allowance was included in the remuneration paid and that all overtime worked was reflected in the payslips. The Respondent therefore prayed that the suit be dismissed with costs. **Issues for determination** 1. Having considered the pleadings, witness statements, documentary evidence and submissions, the issues for determination are: 2. Whether the Claimant resigned or was terminated by the Respondent; 3. Whether the Claimant was underpaid; 4. Whether the Claimant is entitled to unpaid house allowance; 5. Whether the Claimant is entitled to accrued leave pay; 6. Whether the Respondent proved payment of terminal dues; 7. Whether the Claimant is entitled to the remedies sought; and 8. Who should bear the costs of the suit. **Analysis and determination** Whether the Claimant resigned or was terminated 1. Under section 47(5) of the Employment Act, the employee bears the initial burden of proving that an unfair termination or wrongful dismissal occurred. Once that foundational fact is established, the employer bears the burden of justifying the grounds for the termination. 2. The Claimant’s position is that he did not resign and that the Respondent terminated his employment in January 2025. The Respondent relies principally on the handwritten resignation letter dated 6th December 2024. 3. The letter is addressed to the Respondent’s Human Resource Manager and is headed “Resignation Letter for a Job.” The author identifies himself as Chrispus Charo, gives employee number 33270 and states that he had secured another employment opportunity. He requests the Respondent to accept his resignation. 4. The resignation letter bears a signature attributed to the Claimant and the Respondent’s receiving stamp dated 6th December 2024. The resignation letter is accompanied by several contemporaneous documents: 5. The Respondent’s written acknowledgment dated 6th December 2024; 6. A clearance form dated 6th December 2024; 7. A written request bearing the Claimant’s name, mobile number and signature, asking that any final dues be deposited into his Tabasuri account; and 8. A Certificate of Service issued on 6 December 2024. 9. In its acknowledgment letter, the Respondent stated that the Claimant had submitted a resignation taking immediate effect after obtaining another employment opportunity. It also stated that he had absconded duty from 3rd December 2024 without informing management. 10. The Claimant disputed having voluntarily resigned. However, beyond the general denial contained in his pleadings, statement and submissions, he did not specifically explain: 11. Whether the signature appearing on the resignation letter was his; 12. Whether employee number 33270 appearing on the letter was his; 13. How the resignation letter came into the Respondent’s possession; 14. Whether the signature appearing on the request for deposit of final dues was his; 15. Whether he completed the clearance form; or 16. Whether he received the Certificate of Service. 17. The Claimant did not plead fraud, forgery, coercion, duress, misrepresentation or undue influence in relation to the resignation letter. Neither did he place before the Court an expert report or other evidence challenging the signature. 18. The Court is alive to the fact that the Certificate of Service gives the date of leaving as 2nd December 2024, while the resignation letter was written on 6th December 2024. The Respondent’s explanation is that the Claimant deserted duty from 3rd December 2024 and submitted the resignation on 6th December 2024. 19. The inconsistency in the dates is not, by itself, sufficient to displace the resignation letter and the related documents. The date of leaving in the Certificate of Service is reasonably capable of referring to the last day on which the Claimant actually worked, while the resignation letter records the subsequent formal cessation of the relationship. 20. The Claimant’s narrative also presents difficulties. He alleged that he reported to Human Resources in December 2024, was told to return after three weeks, waited until January 2025 and was then verbally informed that he had been terminated. There is no contemporaneous letter, text message, complaint or other communication from him during that period seeking clarification as to his employment status. 21. Further, the Claimant’s documentary bundle itself contains the Certificate of Service stating that his date of leaving was 2 December 2024. The certificate was issued and stamped on 6th December 2024. This is inconsistent with his contention that he remained unaware of the cessation of employment until January 2025. 22. On the evidence as a whole, the resignation letter, acknowledgment, clearance documents, request concerning final dues and Certificate of Service form a consistent contemporaneous sequence. The Court therefore finds, on a balance of probabilities, that the Claimant voluntarily resigned from employment on 6th December 2024. 23. It follows that the Claimant has not established that the Respondent terminated his employment. 24. Since there was no termination initiated by the Respondent, the requirements imposed upon an employer by sections 41, 43 and 45 of the Employment Act regarding notification, proof of a valid reason and procedural fairness do not arise. 25. The claims for a declaration of unfair termination, salary in lieu of notice and compensation for unfair termination must consequently fail. Whether the Claimant was underpaid 1. The Claimant pleaded that he earned Kshs.13,000 per month throughout his employment and that the applicable minimum wage was Kshs.16,959 per month. He calculated underpayment as follows: (Kshs.16,959 – Kshs.13,000) × 40 months = Kshs.158,360. 2. There are several difficulties with this claim. First, the employment period pleaded by the Claimant was from August 2022 to January 2025. That period does not amount to 40 months. Even taking the months inclusively, August 2022 to January 2025 constitutes approximately 30 months. The documentary evidence shows that the employment relationship ended by 6th December 2024, giving a period of approximately 28 months. 3. Secondly, the Claimant described himself variously as: A Day Security Guard;A night security guard; and A Crew employee.His appointment letter identifies his initial designation simply as Guard, while the Certificate of Service identifies his position at joining as Security Guard and his position on leaving as Crew. 4. The prescribed minimum wage depends upon the employee’s occupational category, geographical location and the Wage Order applicable during the particular period. Courts have recognised that the statutory rate for a night watchman is distinct from that applicable to a day watchman or other category of security employee. 5. The Claimant did not provide a month-by-month computation distinguishing: The period during which he allegedly worked as a Day Security Guard; The period during which he allegedly worked as a night watchman; The period after his promotion to Crew; or the remuneration actually received during each period. 6. Thirdly, the Respondent’s payslips contradict the assertion that the Claimant earned a fixed gross salary of Kshs.13,000 throughout. The payslips for February to November 2024 reflect: Basic salary of approximately Kshs.15,900; House allowance of Kshs.2,500; Variable off-day and holiday payments; and gross earnings exceeding Kshs.17,000 in several months.For example, the February 2024 payslip reflects basic salary of Kshs.15,900, house allowance of Kshs.2,500 and total earnings of Kshs.16,377 after the relevant entries. The later payslips similarly record basic pay of Kshs.15,900 and house allowance of Kshs.2,500, with additional variable payments. 7. The employment records are therefore inconsistent with the Claimant’s pleaded premise that he was paid only Kshs.13,000 per month throughout the entire period. 8. Section 48 of the Labour Institutions Act makes minimum terms fixed under a Wage Order binding, and an employer and employee cannot contract out of a statutory minimum. However, the employee must still place sufficient evidence before the Court to establish the applicable occupational classification, prescribed rate, actual wage received and resulting differential. 9. The Court cannot substitute a new calculation for the materially inaccurate and undifferentiated computation pleaded by the Claimant. The Court therefore finds that the claim for underpayment of Kshs.158,360 was not proved on a balance of probabilities. House allowance 1. The Claimant claimed unpaid house allowance calculated as: Kshs.16,959 × 15% × 40 months = Kshs.101,754. Once again, the computation is based on an incorrect period of 40 months. More importantly, the Respondent’s payslips expressly record a separate house allowance of Kshs.2,500 per month. 2. The Claimant did not dispute the authenticity of the payslips or provide alternative payroll records demonstrating that the stated house allowance was not paid. His contention that the monthly salary of Kshs.13,000 was exclusive of house allowance is not sufficient to overcome the payslips showing a distinct house allowance component during the period covered by them. The claim for unpaid house allowance was therefore not proved and is dismissed. Accrued leave 1. The Claimant stated that he never proceeded on annual leave during his employment. The Respondent generally denied this claim but did not produce: Leave application forms; Leave schedules; Leave registers; Leave approval forms; or any other record showing that the Claimant took or was paid for annual leave. 2. Section 28 of the Employment Act entitles an employee to not less than 21 working days of annual leave after every twelve consecutive months of service. Section 74(1)(f) of the Act requires an employer to keep records relating to an employee’s annual leave entitlement, days taken and days due. 3. Those records are ordinarily in the employer’s custody. Once an employee makes a specific allegation that annual leave was neither taken nor paid, the employer is expected to produce its statutory records to disprove that allegation. 4. The Respondent’s assertion in submissions that the Claimant did not prove that he requested leave and was denied leave does not answer the statutory obligation to maintain leave records. The Claimant served from 6th August 2022 to 6th December 2024, a period of approximately 28 months. At the statutory rate of 1.75 leave days per completed month, the period would potentially yield approximately 49 leave days. 5. The Claimant, however, pleaded only 42 leave days, being 21 days for each of two completed years. A Court should not award a party more than was specifically pleaded. 6. The Claimant calculated leave pay using a monthly salary of Kshs.16,959. The Court has declined the underpayment claim and has found that the Respondent’s payroll records reflect a basic monthly salary of Kshs.15,900. 7. Leave pay is therefore calculated using the established basic salary as follows: Kshs.15,900 ÷ 30 × 42 days= Kshs.22,260/=. The Court consequently awards the Claimant Kshs.22,260 as accrued leave pay. Whether terminal dues were paid 1. The Respondent produced a document in which the Claimant allegedly requested that any final dues be deposited into his Tabasuri account. It also produced a cheque dated 14th February 2025. Although both parties referred in their submissions to a cheque of Kshs.3,941, the face of the cheque appears to state the amount as Kshs.39,141, both in figures and words. 2. The cheque bears banking and company stamps. However, the Respondent did not provide: A final dues computation; A breakdown identifying the components making up Kshs.39,141; A Tabasuri SACCO account statement; A deposit confirmation; A bank statement showing that the cheque was honoured; or a receipt or discharge voucher executed by the Claimant. 3. The clearance form does not establish that the cheque included accrued leave pay. Neither does the Certificate of Service constitute proof of payment. 4. The burden of proving payment lies upon the party asserting that payment was made. Production of a cheque may demonstrate an intention or attempt to make payment, but without proof that it was delivered, deposited or honoured, and without a computation identifying the dues settled, the Court cannot conclude that the Claimant’s accrued leave entitlement was paid. The Respondent therefore failed to prove that the award of Kshs.22,260 for accrued leave was settled through the cheque or by any other means. Service pay 1. The Memorandum of Claim referred generally to service pay in paragraph 13. However, service pay was not separately quantified in the schedule of monetary reliefs. The Claimant’s own documents include an NSSF provisional member statement, while the payslips reflect NSSF deductions. 2. Under section 35(6) of the Employment Act, an employee who is a member of the National Social Security Fund is not entitled to service pay under section 35(5). No award is therefore made under this head. **Disposition** 1. The Court finds that: 2. The Claimant voluntarily resigned from employment on 6th December 2024; 3. The Claimant was not terminated by the Respondent; 4. The claims for unfair termination, notice pay and compensation were not proved; 5. The claim for salary underpayment was not proved; 6. The claim for unpaid house allowance was not proved; 7. The Claimant proved that he was not accorded or paid his accrued annual leave; and 8. The Respondent did not prove that the accrued leave entitlement was included in the alleged final dues. 9. Judgment is therefore entered for the Claimant against the Respondent as follows: 10. Accrued leave pay of **Kshs.22,260/=.** 11. The award shall be subject to all applicable statutory deductions under section 49(2) of the Employment Act. 12. The amount awarded shall attract interest at Court rates from the date of this judgment until payment in full. 13. As the Claimant has succeeded only on one limited statutory claim while the substantial claims for unfair termination and related reliefs have failed, each party shall bear its own costs. The claim is otherwise dismissed. **DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOSFT TEAMS AT MOMBASA THIS 30TH JULY 2026.** **……………………………………………….** **EMILY M. MWAMUYE** **SENIOR RESIDENT MAGISTRATE**