Fast Security Services Limited v Ombogo (Employment and Labour Relations Appeal E161 of 2024) [2026] KEELRC 2305 (KLR) (29 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **ELRC APPEAL NO. E161 OF 2024** *(Before D. K. N. Marete)* **FAST SECURITY SERVICES LIMITED……………………………..…APPELLANT** **VERSUS** **BONIFACE ONGORO OMBOGO………………………………………RESPONDENT** **JUDGMENT** This matter was originated by way of a Memorandum of Appeal dated 29th May, 2024 from a judgment delivered on 3rd May, 2024 at Milimani in MCELRC No. E324 of 2022 The grounds of appeal come out thus; 1. *THAT the learned trial Magistrate erred in law and in fact when he made a finding that the Respondent's termination was unlawful and unfair and which is against the weight of the evidence.* 2. *THAT the learned trial Magistrate erred in law and in fact when he awarded Kshs. 610.085.26 to the Respondent as terminal dues and damages for unlawful termination.* 3. *THAT the learned trial Magistrate erred in law and in fact when he failed to take into consideration the evidence by the Appellant that the Respondent herein absconded from employment.* 4. *THAT the learned trial Magistrate erred in law and in fact by awarding damages for unfair termination of Ksh. 139,304.00 which is equivalent to eight (8) months' salary without taking into account the Appellant's evidence that the Respondent absconded employment and that his employment was never terminated by the Appellant and without any peculiar circumstances to warrant grant of such damages.* 5. *THAT the learned trial Magistrate erred in law and in fact by awarding one (1)month salary in lieu of notice of 17,413*/= *when the Respondent's employment was never terminated by the Appellant but rather the Respondent deserted work.* 6. *THAT the learned trial Magistrate erred in law and in fact by awarding unpaid house allowance of Ksh. 104,479/= without any evidence that it was payable and without taking into account the evidence by the Appellant that the monthly salary was inclusive of the housing allowance.* 7. *THAT the learned trial Magistrate erred in law and in fact by awarding minimum wage balance of Ksh. 314,621.81 without taking into account the evidence by the Appellant that the monthly salary was agreed upon at the start of employment.* 8. *THAT the learned trial Magistrate erred in law and in fact by awarding unpaid leave of Ksh. 33.997/= without taking into account the evidence of the Applicant that the Respondent was given leave days during the course of his employment.* 9. *THAT the learned trial Magistrate misdirected himself in law and in fact by considering extraneous matters and misinterpretations in exercising his discretion to award the Respondent a compensation of eight(8) months for alleged unfair termination.* 10. *THAT the learned trial Magistrate erred in fact and in law by failing to take into account and consider the evidence adduced by the Appellant.* 11. *THAT the learned trial Magistrate erred in law and in fact by failing to exercise his discretion judiciously and in consideration of the facts and law before him thereby arriving at an unfair and unjust decision.* 12. *THAT the learned trial Magistrate erred in law and fact by failing to consider trite law and principles when making his determination, thereby arriving at an unfair and unjust decision.* 13. *THAT the learned trial Magistrate erred in law and in fact by failing to adequately consider, or at all, the submissions and legal authorities of the Appellant.* The Appellant prays as follows; 1. *That the appeal be allowed.* 2. *That the judgment of Honourable Rawlings Liluma Musiega delivered on the 3rd May, 2024 be set aside.* 3. *Costs of this appeal be awarded to the Appellant.* It is the Appellant’s case and submission that the Respondent was employed on 4th August, 2016 as a night security guard and was never dismissed. The Appellant’s case is that the Respondent absconded duty on 14th June, 2020 after a period of compulsory leave. The Appellant made attempts to contact him which went unanswered, and that his failure to report for duty constituted a self-induced separation. The Appellant further submits that the monetary awards were unsupported by sufficient evidence and that the part-payment of Kshs. 300,000.00 towards the decretal sum should not be construed as a waiver of its right of appeal. The Respondent’s case and submission is that the trial court rightly found his termination to be unlawful and unfair. The Respondent testified that he resumed duty on 14th June, 2020 after the compulsory leave and was on that day told by the Appellant’s management that his services were no longer required. He was not issued with any termination letter, afforded any hearing, or paid any terminal dues. The Respondent further submits that the Appellant’s part-payment of Kshs. 300,000.00 towards the decretal sum does not constitute a waiver of any right; the Respondent merely received money lawfully due to him. After a considered look and scrutiny of the Memorandum of Appeal, the Record of Appeal, the proceedings and evidence on record and the submissions of the parties the issues for determination therefore become; 1. Whether the Respondent absconded duty or was unfairly terminated. 2. Whether the Respondent was entitled to compensation for unfair termination and notice pay. 3. Whether the salary, minimum wage, house allowance and leave awards were properly made. 4. Whether the part-payment of the decretal sum affects this appeal. 5. Who shall bear the costs of this appeal. The 1st issue for determination is whether the Respondent absconded duty or was unfairly terminated. This being a first appeal, the court is enjoined to re-examine and re-evaluate the evidence adduced before the trial court and draw its own independent conclusions, bearing in mind that it did not have the advantage of seeing and hearing the witnesses. Section 47(5) of the Employment Act, 2007 provides that in any claim arising from termination of employment, the employer bears the burden of proving that the termination was justified. The Appellant’s principal complaint is that the trial court found the termination unlawful and unfair despite evidence of absconding duty. However, the Appellant produced no attendance records, no letters calling the Respondent to return to duty, no documentary evidence of any attempt to contact him, and no evidence that a formal enquiry into the alleged absconding was ever conducted. RW1 conceded in cross-examination that no letter was written to the Respondent at any stage and that the Appellant kept no records of any investigation. Even taken on its own terms, the Appellant’s account does not establish absconding duty as a legal matter; it describes a period of non-attendance which was never investigated and which the Respondent has consistently and credibly explained. In the authority of **Richard Kiplimo Koech v Yuko Supermarket Ltd [2015] eKLR**, relied upon by the trial court, it was held that before an employer can treat an employee as having absconded, the employer must have made genuine and documented attempts to contact the employee and must have conducted an inquiry into the reasons for the employee’s absence. Measured against that standard, the Appellant’s case falls short on its own evidence. The trial court’s finding of unfair termination on this issue is upheld. The 2nd issue for determination is whether the Respondent was entitled to compensation for unfair termination and notice pay. Having upheld the finding of unfair termination, the Respondent’s entitlement to compensation under Section 49(1)(c) of the Employment Act, 2007 and to notice pay under Section 35 follows. The trial court awarded the equivalent of eight months’ gross salary as compensation. Having regard to the Respondent’s length of service of approximately four years, the nature of the termination and the absence of any procedural compliance whatsoever, an award of eight months is within the range of the court’s discretion and is not excessive. The notice pay award is equally unimpeachable. The 3rd issue for determination is whether the salary, minimum wage, house allowance and leave awards were properly made. These salary, minimum wage, house allowance and leave awards all rest on the trial court’s application of Sections 74 and 10(7) of the Employment Act, 2007 which place the burden of keeping and producing employment records on the employer. The Appellant produced no contract of employment, no payslips itemising salary or allowances, and no leave records. The trial court was correct to resolve each of these heads against the Appellant and this court finds no basis to interfere with any of those awards. The 4th issue for determination is whether the part-payment of the decretal sum affects this appeal.The Respondent’s submissions confirm that the Appellant has since made a part-payment of Kshs. 300,000.00 towards the decretal sum of Kshs. 610,086.00. This court is not persuaded that part-payment, without more, operates as a waiver of the right of appeal or as an admission of the correctness of the judgment. A party may make part-payment for practical reasons, including to reduce accruing interest, without thereby abandoning any right of appeal. However, the Appellant shall be entitled to credit against the decretal sum for the Kshs. 300,000 already paid, with the balance to carry interest at court rates from the date of the trial court’s judgment until payment in full. On the issue of costs, it is an accepted principle of civil law that cause follow the event. The Appellant having failed to establish their case on both grounds, costs would follow the Respondent. I am therefore inclined to dismiss the appeal with costs to the Respondent. Delivered, dated and signed this **29th** day of **July** 2026. **D. K. Njagi Marete** **JUDGE** Appearances: 1. Mr. Mwaniki instructed by Kinyua Mwaniki & Wainaina Advocates for the Appellant. 2. No appearance for the Respondent.