Elemech Engineering Kenya Limited v Njirani (Appeal E004 of 2024) [2026] KEELRC 1376 (KLR) (22 May 2026) (Judgment)

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAKURU ELRC APPEAL NO. E004 OF 2024 (Before Hon. Lady Justice Anna Ngibuini Mwaure) ELEMECH ENGINEERING KENYA LIMITED ………..……………..……...…... ….....APPELLANT VERSUS JOHN NJOROGE NJIRANI ……………………........RESPONDENT (Being an Appeal from the Ruling and Order of the Honourable V.O Adet, Principal Magistrate, delivered on 19th December 2023 in Nakuru CM ELRC No. 118 of 2020) JUDGMENT 1. The Appellant, being dissatisfied with the Judgment and Decree of the Honourable V.O Adet, Principal Magistrate, filed this appeal vide a Memorandum of Appeal dated 16th January 2024, on the following grounds that: 1.The Learned Magistrate erred in law and fact in failing to appreciate the principle of burden of proof which demands that in civil cases; the party that desires the court to give a judgment as to any legal right not only has the legal burden but ELRC APPEAL NO. E004 OF 2024 JUDGMENT 1 | P A G E also has the evidential burden. If the Claimant does not discharge this legal burden, then the Claimant’s claim will fail. 2.The Learned Trial Magistrate erred in law and fact in failing to take into account the total lack of the material evidence placed before him by way of exhibits and submission, therefore, arriving at the wrong assessment under the heads of overtime dues, public holiday dues and off duty dues. 3.The Learned Trial Magistrate erred in law and fact by failing to consider and appreciate the fact that no factual evidence was tendered by the Respondent that sufficiently demonstrated that he worked on public holidays, worked on off duty days, worked overtime and failed to go on leave. 4.The Learned Trial Magistrate failed in law and fact in awarding leave for 2 years when the Respondent had not sufficiently demonstrated and tendered evidence indicating that he had not taken leave and was seeking to carry forward untaken leave days to the next year with the Respondent’s leave/permission. ELRC APPEAL NO. E004 OF 2024 JUDGMENT 2 | P A G E 5.The Learned Trial Magistrate erred in law and fact in making a finding that the Respondent was underpaid and making a consequent erroneous award of Kshs.118, 836/= as the cumulative under paid dues. 6.The Learned Trial Magistrate erred both in law and fact in failing to adhere to the provisions of section 49 of the Employment Act on the remedies available to a Claimant. 7.The Learned Trial Magistrate erred in law and fact by failing to appreciate the significance of the lack of documentary evidence that the Respondent failed to produce in support of his case. 8.The Learned Trial Magistrate erred in law and fact to consider the Appellant’s submissions which were duly filed. 9.The Learned Trial Magistrate disregarded the principles of precedent and stare-decisis on comparable and like cases, thereby employing wrong principles in determining the awards as to occasion a travesty of justice. ELRC APPEAL NO. E004 OF 2024 JUDGMENT 3 | P A G E 10.The Learned Trial Magistrate erred in his evaluation and analysis of the pleadings and the evidence adduced as to occasion a miscarriage of justice against the Appellant. 2. The Appellant prays that: a. This appeal is allowed with costs and the decision of the lower court is set aside in its entirety and the Respondent’s claim/suit is dismissed with alternative, this court reassesses, re-evaluates and reanalyses the evidence and make its independent decision based on the evidence on record. b. The costs of this Appeal be granted to the Appellant. 3. The appeal was disposed of by way of written submissions. Appellant’s submissions 4. The Appellant submitted that being the first appellate court, the court has the mandate to re-evaluate, re- assess, and re-analyze the evidence presented before the trial court and arrive at independent findings, while bearing in mind that it did not see or hear the witnesses. This principle was reaffirmed in Abok JUDGMENT 4 | P A G E ELRC APPEAL NO. E004 OF 2024 James Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, where this Court restated this requirement as follows: “This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way. See the case of Kenya Ports Authority versus Kushton (Kenya) Limited (2000) 2EA 212 wherein the Court of Appeal held, inter alia, that: - 'On a first appeal from the High Court, the Court of Appeal should consider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to ELRC APPEAL NO. E004 OF 2024 JUDGMENT 5 | P A G E introduce extraneous matters not dealt with by the parties in the evidence.” 5. The Appellant submitted that the Respondent filed a claim seeking judgment against it for Kshs.471,048.26/=, comprising leave pay, severance pay, underpayments, overtime, public holidays, and off-duty allowances. He testified that he worked night shifts from 6:00 pm to 6:00 am without overtime pay, was declared redundant, denied leave, and verbally terminated by a branch manager before being asked to resign, which he did. He produced supporting documents including his ID, NSSF statement, and a copy of the Wages Order. In response, the Appellant denied liability and called one witness, Fridah Lumadi, the Human Resource and Administration Officer, who produced the Respondent’s resignation letter, its acceptance, and a clearance attestation form as evidence. 6. The Appellant submitted that the Respondent’s claim was in the nature of special damages, which must be specifically pleaded and strictly proved before being awarded. Courts have consistently held this principle, as seen in Hahn v Singh [1985] KLR 716, where ELRC APPEAL NO. E004 OF 2024 JUDGMENT 6 | P A G E the Court of Appeal emphasized that special damages cannot be inferred but must be established with certainty. Similarly, in David Bagine v Martin Bundi [1997] KECA 54 (KLR), where the Court of Appeal cited the case of Bonham Carter v Hyde Park Hotel Limited [1948] 64 TLR 177, it was reiterated that plaintiffs must prove damages rather than merely list figures. The maxim “he who alleges must prove,” enshrined in sections 107 and 108 of the Evidence Act, places the burden of proof on the party asserting a claim. Justice Majanja in Nyakwana v Ongaro [2015] KEHC 8440 (KLR) reaffirmed that the legal burden lies on the party invoking the aid of the law, underscoring that unsupported claims cannot succeed. 7. The Appellant submitted that the Respondent gave a resignation letter dated 5th October 2019, which is clear and unequivocal in its terms. The principle applied is that documentary evidence speaks for itself, and where the language of a document is plain, no oral testimony is admissible to contradict it. Thus, the resignation letter stands as conclusive proof of the Respondent’s voluntary resignation. The Appellant relied on the case of Fidelity Commercial Bank V ELRC APPEAL NO. E004 OF 2024 JUDGMENT 7 | P A G E Kenya Grange Vehicle Limited [2017] eKLR where the Court of Appeal stated as follows: “This is what sometimes is called the principle of four corners of an instruments, which insists that a document’s meaning should be derived from the document itself, without reference to anything outside of the document (extrinsic evidence), such as the circumstances surrounding its writing or the history of the party or parties signing it….. The supporting rational for this rule is that, since the contracting parties have reduced their agreement a single and final writing, extrinsic evidence of past agreements or terms should be considered when interpreting that written contract agreement, as the parties had consciously decided to ultimately leave them out of the contract. In other words, one may not use evidence made prior to the written contract to contradict the ultimate contract that has been reduced into writing.” ELRC APPEAL NO. E004 OF 2024 JUDGMENT 8 | P A G E 8. The Appellant submitted that in employment disputes, pleadings alone cannot establish a claim without supporting evidence. Courts require proof, usually through documents or testimony, since pleadings are merely assertions until verified. Section 47(5) of the Employment Act places the initial burden on the employee to prove unfair termination or wrongful dismissal, while the employer must justify the grounds for termination. This principle is reinforced in CMC Aviation Ltd v Crusair Ltd (No. 1) [1978] KLR 103, where Justice Madan held that pleadings are not evidence, and in Nicholus Kipkemoi Korir v Hatari Security Guards Ltd [2016] eKLR, where the court emphasized that allegations unsupported by evidence cannot succeed. Ultimately, decisions in civil claims rest on proof established on a balance of probabilities. 9. The Appellant submitted that the Respondent was entitled to leave pay and uniform refund. According to the Respondent, he claimed for Kshs.24,332.50/= as leave pay while the Appellant contended that the uniform deduction were Kshs.50.00 per month which work out Kshs.50.00 X 12 X 2= Kshs.12,000. Accordingly, the Appellant conceded to the court awarding the Respondent a sum of Kshs.25,532.50/=. ELRC APPEAL NO. E004 OF 2024 JUDGMENT 9 | P A G E 10. The Appellant urged the court to allow the appeal as prayed by substituting the trial’s court findings/judgment and orders with an order allowing the Respondent’s claim to the extent of Kshs.25,532.50/= with costs. Respondent’s written submissions 11. The Respondent submitted that he was employed as a security guard by the Appellant from November 2017, with corroboration from DW1 confirming the employment period. The Respondent emphasizes that he was entitled to leave dues for two years under Legal Notice No. 2 of 1st May 2018, calculated at Kshs.24,332.50/= based on a monthly basic salary of Kshs.14,038/= and 26 working days for security guards. The Respondent testified, and DW1 admitted during cross-examination, that these leave dues were never paid, contrary to section 28(1)(a) of the Employment Act. The Respondent therefore argued that the Appellant failed to discharge the burden of proof, reinforcing the respondent’s entitlement to the claimed leave dues. ELRC APPEAL NO. E004 OF 2024 JUDGMENT 10 | P A G E 12. The Respondent submitted that he is entitled to overtime dues, arguing that he consistently worked 12-hour shifts from 6:00pm to 6:00am instead of the standard 9 hours. This resulted in 3 hours of overtime per day, amounting to 72 hours monthly. For the period between November 2017 and April 2018 (6 months), the overtime totaled 432 hours, calculated against a basic salary of Kshs.13,369.50, yielding Kshs.44,427.90/=. For May 2018 to October 2019 (18 months), the overtime totaled 1,296 hours, calculated against a basic salary of Kshs.14,038/=, yielding Kshs.139,948.05/=. The overall claim for overtime dues was Kshs.184,375.95/=. The Respondent emphasized that DW1 corroborated the 12-hour work schedule but failed to produce pay slips or bank statements proving payment, and relied on the case of Charo v Shreeji Enterprises Ltd [2025] KEELRC 2684 (KLR), which held that employers must produce work records and the employer bears the burden of proving the absence of employee’s entitlement. 13. The Respondent submitted that he is entitled to the claim for underpayment dues, arguing that he was consistently paid Kshs 11,000/= per month, which fell ELRC APPEAL NO. E004 OF 2024 JUDGMENT 11 | P A G E below the statutory minimums prescribed by Legal Notice No. 112 of 1st May 2017 and Legal Notice No. 2 of 1st May 2018. For the period between November 2017 and April 2018, the Respondent was entitled to a gross monthly pay of Kshs.15,374.90/=, resulting in a monthly underpayment of Kshs.4,374.90/= and a total of Kshs.26,249.40/= over six months. From May 2018 to October 2019, the gross entitlement rose to Kshs.16,143.70/=, yielding a monthly shortfall of Kshs.5,143.70/= and a cumulative underpayment of Kshs.92,586.60/= over 18 months. The total underpayment claimed is Kshs.118,836/=. DW1’s failure to produce a written employment contract undermines the appellant’s defense, and under section 107 of the Evidence Act, the burden of proof remains unmet. The Respondent relies on Kathra Hussein Noor & Another v Kaderdina Hajee Essak Ltd [2016] eKLR where the court cited the case of David Wanjau Muhoro v Ol Pajeta Ranching Ltd [2014] eKLR where the court observed as follows: “Where the salary of an employee remains in arrears, or remains underpaid, recovery of the arrears or the underpayments, is not ELRC APPEAL NO. E004 OF 2024 JUDGMENT 12 | P A G E to be defeated by limitation under section 90 of the Employment Act; all accrued benefits must be paid to the employee on termination; arrears of salary and underpayment of salary involve a default of a continuing nature by the employer, and time would only start running from the date of cessation of the continuous default; every month there is default by the employer, the time for accrual of the cause of action resets with regard to the cumulative obligations; and so long as the whole claim is not time-barred, there is no reason to bar claims for arrears for salary, salary discrimination and underpayments accruing during the period in employment.” 14. The Respondent submitted that the claim for public holiday dues is grounded on evidence that he worked during holidays, corroborated by DW1’s witness statement, yet the Appellant failed to produce muster rolls or pay slips to prove payment. The calculations show that between November 2017 and April 2018, he worked 72 hours on six holidays, amounting to JUDGMENT 13 | P A G E ELRC APPEAL NO. E004 OF 2024 Kshs. 9,872.85/=, and between May 2018 and October 2019, he worked 144 hours on 15 holidays, amounting to Kshs. 20,733.05/=, giving a total of Kshs.30,605.90. Relying on section 107 of the Evidence Act, the Respondent argued that the Appellant did not discharge the burden of proof, thereby validating his entitlement to the claimed public holiday dues amounting to Kshs.30,605.90/=. 15. The Respondent submitted that he is entitled to off- duty dues emphasizing that he was entitled to four rest days per month but only received them for 10 months out of his 24-month service, leaving 14 months unpaid. This translates to 56 missed off-duty days, each 12 hours long, amounting to 672 hours, which when calculated against a basic salary of Kshs.14,038/= yields Kshs.96,754.21/=. The Respondent relied on section 27(2) of the Employment Act to support this claim. 16. On costs, the Respondent submitted that costs follow the event, and since he pursued a legal right without misconduct, omission, or vexatious conduct, he is entitled to costs. This position is reinforced in the case of Republic v Rosemary Wairimu Munene, Ex ELRC APPEAL NO. E004 OF 2024 JUDGMENT 14 | P A G E parte v Ihururu Dairy Farmers Co-operative Society Ltd Judicial Review Application No 6 of 2004, which held that costs are meant to compensate the successful party, and Cecilia Karuru Ngayu v Barclays Bank of Kenya & another [2016] KEHC 7064 (KLR), affirming the principle that costs follow the event. 17. The Respondent urged the court to dismiss the appeal as prayed. Analysis and determination 18. Being the first appeal, it is the court’s duty to reassess the evidence presented, conduct its own analysis, and reach independent conclusions in order to determine whether the trial court’s findings align with both the evidence and the applicable law. The court should, however, bear in mind that it did not see the witnesses as they testified and give due allowance as reiterated in the case Abok James Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates (Supra). 19. Having looked at the grounds of the memorandum of appeal, record of appeal, and the rival submissions by both parties; the issue for determination is whether ELRC APPEAL NO. E004 OF 2024 JUDGMENT 15 | P A G E the court needs to interfere with the reliefs awarded by the trial court. 20. In Isindu v Lavington Security Guards Ltd [2017] KECA 225 (KLR) the Court of Appeal cited section 47(5) of the Employment Act on unfair termination which provides as follows: “For any complaint of unfair termination of employment or wrongful dismissal the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds of the termination of employment or wrongful dismissal shall rest on the employer.” [Emphasis added] So that, the appellant in this case had the burden to prove, not only that his services were terminated, but also that the termination was unfair or wrongful. Only when this foundation has been laid will the employer be called upon under section 43 (1): "to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed ELRC APPEAL NO. E004 OF 2024 JUDGMENT 16 | P A G E to have been unfair within the meaning of section 45.” 21. In this instant appeal, there is undisputed evidence that the Respondent was employed by the Appellant as a night guard from 1st November 2017. The gist of the appeal is that the Respondent stated he was verbally terminated on 30th October 2019 by the Appellant through the branch manager the grounds he was assigned to the client terminated the Appellant’s services. The Respondent later tendered a resignation letter which was accepted by the Appellant. The Appellant on the other hand stated that the Respondent voluntarily resigned. The learned trial Magistrate held that the Respondent had voluntarily resigned and that there was no redundancy on the part of the Appellant. There is the letter of resignation as an exhibit by the Claimant dated 5th October 2019. The resignation was accepted by the Appellant on 7th October 2019. The court is in agreement with the trial court that the Respondent resigned voluntarily. 22. The Appellant then is challenging the reliefs that were awarded by the learned trial Magistrate. Sections ELRC APPEAL NO. E004 OF 2024 JUDGMENT 17 | P A G E 107, 108, 109 and 112 of the Evidence Act as whoever alleges must prove. In this particular case, the Respondent presented the legal notice to show the minimum wages for guards. For leave days, the trial learned Magistrate had indicated that this relief was not disputed. The trial Magistrate having had the benefit of hearing the evidence by the parties and having considered that the Claimant proved he had not taken leave, the court will agree with the trial Magistrate’s award. 23. The relief for overtime, the court will rely on the case of Rogoli Ole Manadiegi v General Cargo Services Limited [2016] KEELRC 1607 (KLR) where the court stated as follows: “The Court is not able to agree with the Appellant on this ground. It is true the Employer is the custodian of employment records. The Employee, in claiming overtime pay however, is not deemed to establish the claim for overtime pay by default of the Employer bringing to Court such employment records. The burden of establishing hours or days served in excess ELRC APPEAL NO. E004 OF 2024 JUDGMENT 18 | P A G E of the legal maximum, rests with the Employee. The Claimant did not show in the Trial Court when he put in excess hours, when he served on public holidays or even rest days. The evidence on record does not even separate normal overtime from overtime on rest days and public holidays. The rates of compensation are different. He did not justify the global figure claimed in overtime, showing specifically how it was arrived at, based on the Regulation of Wages [Protective Security Services] Order 1998. He correctly argues on the application of the Order, but gave no consistent evidence showing the hours worked, and how these hours gave rise to the figure of Kshs.222,350 claimed as the overall overtime. Furthermore from the recorded evidence, the Appellant testified there were times he went home for a week, or two weeks. He stated, ’’in the course of employment, there is a time I was not working.’’ How then would he justify overtime pay based ELRC APPEAL NO. E004 OF 2024 JUDGMENT 19 | P A G E on the full period in employment, if he did not work in full? His claim for overtime was not established on the balance of probability, and his correct submission on the law relating to computation of overtime pay, is made in a factual vacuum.” 24. In the absence of material evidence adduced by the Respondent in support thereof, the court finds the trial magistrate erred in awarding overtime, public holidays and off duties. Those are disallowed. 25. With respect to the claim for underpayment, the court will not disturb the award, the Respondent having satisfactorily demonstrated that he was subjected to underpayment as per what he was receiving and what is provided in the wages order as worked out in the claim. The court will uphold the trial magistrates award on underpayment. 26. As regards the reliefs sought for public holidays and off-duty days, the Court has already pronounced itself on the same. These are disallowed. 27. The court has analysed the Record of appeal and the submissions of the rival parties and upholds the ELRC APPEAL NO. E004 OF 2024 JUDGMENT 20 | P A G E appeal as far as the separation of the Respondent is concerned. The Respondent resigned voluntarily and with no coercion. The reliefs granted by the trial magistrate are however revised as follows: - 1.Under payment - Kshs.118,836/= 2.Leave pay - Kshs.24,332/50 3.The Respondent is awarded a total figure of Kshs.143,168/50 plus costs of the appeal and costs of the trial court proceedings. 4.The above is to accrue interest at 14% per annum from date of this judgment until full payment. Orders accordingly. Dated, Signed and Delivered virtually at Nakuru this 22nd Day of May, 2026. ANNA NGIBUINI MWAURE JUDGE 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 ELRC APPEAL NO. E004 OF 2024 JUDGMENT 21 | P A G E 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 has 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. A signed copy will be availed to each party upon payment of Court fees. ANNA NGIBUINI MWAURE JUDGE ELRC APPEAL NO. E004 OF 2024 JUDGMENT 22 | P A G E