https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1289

Matseshe v Fast Security Services Limited (Employment and Labour Relations Appeal E216 of 2024) [2026] KEELRC 1289 (KLR) (14 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1289 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Appeal E216 of 2024 DKN Marete, J May 14, 2026 Between Hassan Mukabana Matseshe Appellant and Fast Security Services Limited Respondent Judgment 1.This appeal arises from a Memorandum of Appeal dated 26th July, 2024 filed against the judgment delivered on 25th July 2024 at Milimani in Nairobi CMELRC Case No. E1324 of 2022. 2.The Memorandum of Appeal sets out the following grounds:i.The learned magistrate erred in law by failing to consider the concept of consolidation of wages.ii.The learned magistrate failed to appreciate the circumstances leading to the claimant's termination and the obligation placed on the respondent by virtue of section 41 of the Employment Act.iii.The learned magistrate failed to consider the minimum wage in arriving at the determination whether or not the claimant deserved underpayment and housing allowance.iv.The learned magistrate failed to consider section 31 of the Employment Act as read together with regulation 5 of the Wages (Protective Security Guards) Order with regard to the issue of house allowance.v.The learned magistrate failed to consider section 27 of the Employment Act as read together with regulations 6 and 7 of the Wages (Protective Security Guards) Order with regard to the issue of overtime.vi.The learned magistrate failed to consider section 27 of the Employment Act as read together with regulation 9 of the Wages (Protective Security Guards) Order with regard to working on public holidays.vii.The trial court failed to consider regulation 8 of the Wages (Protective Security Guards) Order with regard to rest days.viii.The learned magistrate failed to consider section 28 of the Employment Act as read together with regulation 10 of the Wages (Protective Security Guards) Order with regard to the issue of annual leave.ix.The trial court failed to consider the claimant's submissions as contained in the claim that were precise as to the law the claimant was invoking.x.The trial court failed to consider section 48(1)(a) and (b) of the Labour Institutions Act thereby leading to an error whose effect was the dismissal of the claimant's special damages.xi.The trial court failed to consider the provisions of sections 10(7) and 74 of the Employment Act and placed an unjustified burden of proof on the claimant.xii.The trial court failed to consider the minimum wage order with regard to basic minimum wage thereby wrongfully dismissing the claimant's prayer for underpayments.xiii.The trial court generally failed to consider the provisions of the Wages (Protective Security Guards) Order as submitted by the claimant.xiv.The learned magistrate erred in law by failing to properly apply the law to the facts thereby resulting in the dismissal of the suit. 3.The Appellant prays for orders that:a.The trial court's entire judgment be set aside and in its place judgment be entered in line with the memorandum of claim.b.A declaration that the termination of the claimant's employment by the respondent was unlawful, malicious, unprocedural and an infringement on his constitutional rights.c.A declaration that the respondent's failure to issue to the claimant an employment contract in contravention of sections 10(1), 10(2), 10(3)(a) and 10(3)(c) of the Employment Act as read together with sections 16(1) and 16(4).d.Upon allowing prayer (c), the court to proceed and penalise the respondent pursuant to sections 16(2) and (4) of the Employment Act.e.Maximum compensation for wrongful dismissal.f.Special damages as pleaded in the Memorandum of Claim.g.Interest on the total.h.Certificate of service.i.Costs of the cause and the appeal. 4.The Appellant's case before the trial court was presented through a Memorandum of Claim dated 15th July, 2022 a Verifying Affidavit of even date, a Witness Statement dated 15th July 2022, and a List and Bundle of Documents. Before this court, the Appellant filed Submissions dated 2nd March 2025. 5.The Appellant's case as presented across these documents is as follows:That he was employed by the Respondent as a security guard in January 2018 and was deployed at Krishna Heights, a residential property managed by Kraden Homes Property Managers. He worked 12-hour day shifts from 6.00 am to 6.00 pm. He was paid a salary of Kshs. 9,700.00 per month throughout his employment, which was below the statutory minimum wage. He was never issued with an employment contract despite working for the Respondent for over two years. On or around July, 2020 the Respondent's contract with Kraden Homes Property Managers came to an end. When the Appellant returned to the Respondent's offices to be allocated new duties, he was informed that his services were no longer required and was not paid his terminal dues. 6.In their Witness Statement, the Appellant averred that he was never afforded house allowance, annual leave, rest days, or compensation for overtime and public holiday work throughout his employment. He stated that he reported to work at 6.00 am and left at 6.00 pm and that he was never compensated for the extra hours worked. He further stated that he worked on public holidays and was never compensated for the same. He testified that when the assignment at Krishna Heights ended, he went back to the Respondent to be allocated duties but was instead told his services were no longer needed. 7.The Appellant in their written submissions dated 2nd March, 2025 conceded that he had resigned from employment and abandoned all prayers touching on wrongful and unlawful termination, limiting the appeal to the special damages that were dismissed by the trial court. He relied on the Regulation of Wages (General) (Amendment) Order, 2018 and the Wages (Protective Security Guards) Order, 1998 in support of his claims for underpayment, house allowance, overtime, public holiday pay, rest days and annual leave. He submitted that the burden of proof on the terms of employment and working conditions lay with the Respondent under sections 10(7) and 74 of the Employment Act, 2007 and that the Respondent's failure to keep and produce records could not inure to his disadvantage. They relied on the authorities of Matoke v Suchak (Appeal E046 of 2022) [2023] KEELRC 2393 (KLR), Mutunga v SGA Security Solutions Limited(Appeal E002 of 2022) [2022] KEELRC 1553 (KLR), and Wanyera v Central Isiolo Investment Limited (Appeal E002 of 2023) [2024] KEELRC 596 (KLR) to buttress their case. 8.The Respondent's case before the trial court was presented through a Response to the Statement of Claim dated 6th September, 2022, a Witness Statement of Richard Maroa dated September 2022, and a List and Bundle of Documents. Before this Court, the Respondent filed Written Submissions in response to the appeal. 9.The Respondent's case is as follows. The Appellant was employed as a security guard and was deployed at Krishna Heights. When the Respondent's contract with Kraden Homes Property Managers was terminated in July, 2020 the Appellant was informed and requested to report back to the Respondent's offices for redeployment. Instead of reporting back as directed, the Appellant crossed over to the incoming security company and began working for them at the same premises. He later tendered his resignation to the Respondent by letter dated 29th September, 2020 in which he requested payment of his salary for july and service pay for three years. The Respondent avers that the Appellant left employment on his own volition and was duly paid his final dues by cheque number 002530 for Kshs. 11,700. The Respondent produced an occurrence book entry recording the handover at Krishna Heights, the resignation letter, leave application forms signed by the Appellant showing he took annual leave in April, 2019 and April, 2020 and a cheque stub evidencing the final payment. 10.On the special damages, the Respondent submitted that the Appellant did not produce any evidence to substantiate his claims. On underpayment, it submitted that the Appellant himself testified that he never complained about his salary and that all guards were paid the same amount and that he was always paid what had been agreed upon. On house allowance, the Respondent submitted that the salary paid was an all-inclusive consolidated package inclusive of housing allowance, relying on the authorities of Enoch Thiong'o Kibathi v Directline Assurance Company Limited[2021] eKLR and Kenya National Private Security Workers Union v Watchdog Limited [2018] eKLR. On overtime and public holidays, the Respondent submitted that the Appellant himself testified that he never asked to be paid for overtime, that he brought no evidence of the days or hours worked, and that the burden of proof lay with him as a claimant. It relied on Ngunda v Ready Consultancy Limited (Civil Appeal 129 of 2019) [2022] KECA 577 (KLR) and Twiga Construction Limited v Julius Nyamai Mulatia [2018] eKLR in such support. 11.On rest days, the Respondent submitted that the Appellant was entitled to four days off in a month which he took during employment, but produced no evidence to support the denial. On annual leave, the Respondent produced leave application forms signed by the Appellant confirming that he took leave in April 2019 and April 2020. 12.On service gratuity, the Respondent submitted that this issue was not raised as a ground in the Memorandum of Appeal and should not be entertained. On the burden of proof generally, the Respondent in buttressing their case sought to rely on authority of Apex Steel Limited v Dominic Mutuamuendo [2020] KEELRC 567 (KLR) for the proposition that a claimant for special damages bears the onus of specifically pleading and proving each head of claim, a burden which the Appellant failed to discharge. 13.The issues for determination in this appeal are:1.Whether the trial court erred in dismissing the Appellant's claims for underpayment and house allowance.2.Whether the trial court erred in dismissing the Appellant's claims for overtime, public holiday pay, rest days, annual leave and service gratuity.3.Who bears the costs of this appeal. 14.The standard of review applicable on a first appeal is well-settled. This Court is entitled to re-evaluate the evidence on the record and draw its own conclusions while remaining mindful that it lacked the advantage of observing the demeanour of witnesses at trial. Interference with the findings of the trial court is warranted only where the trial court misdirected itself in law, misapprehended the facts, took irrelevant considerations into account, failed to consider relevant matters, or reached a decision that is plainly wrong. This is the ratio decidendiin Selle and Another v Associated Motor Boat Co. Ltd [1968] EA 123. 15.On the 1st issue, the Appellant's claim for underpayment is grounded on the Regulation of Wages (General) (Amendment) Order, 2018, which came into force on 1st May 2018 and fixed the basic minimum monthly wage for a general labourer including a day watchman in Nairobi, Mombasa and Kisumu at Kshs. 13,572.90. The Respondent's own witness confirmed under cross-examination that he did not follow the minimum wage and that the sum paid was an all-inclusive package. The Appellant was paid Kshs. 9,700 per month, a figure that is below the statutory minimum. The Respondent's submission that the Appellant never complained about his salary does not displace the statutory obligation. Section 48(1)(b) of the Labour Institutions Act, 2007 provides that minimum rates of remuneration established in a wages order constitute a term of employment of every employee to whom the wages order applies and may not be varied by agreement. The Respondent's admission of non-compliance with the minimum wage order is effectively an admission of the underpayment claim. The shortfall of Kshs. 3,872.90 per month applied across 30 months from January 2018 to July 2020 yields Kshs. 116,187. This partly answers the 1st issue for determination. 16.On house allowance, regulation 5 of the Wages (Protective Security Guards) Order, 1998 prescribes that an employee who is not provided with free housing accommodation shall be paid a housing allowance of seven hundred and fifty shillings per month or fifteen per cent of his basic minimum monthly wage, whichever is higher. Section 31 of the Employment Act similarly obliges every employer to provide reasonable housing accommodation or pay a sufficient sum as rent in addition to wages. The Appellant testified that he was never afforded house allowance throughout his employment. The trial court dismissed this claim by relying on the authority of Enoch Thiong'o Kibathi v Directline Assurance Company Limited [2021] eKLR, which holds that housing allowance need not be paid separately where an employment contract consolidates it as part of the basic wage. 17.The premise of that authority is that a contractual provision effecting the consolidation exists. In this case, no written employment contract was ever issued to the Appellant. The Respondent's own witness admitted this. There is therefore no contractual basis for consolidation. Moreover, the salary actually paid was itself below the statutory minimum wage. It is not open to an employer to say that an underpayment simultaneously incorporates and satisfies a separate statutory allowance. This court is guided by Matoke v Suchak (Appeal E046 of 2022) [2023] KEELRC 2393 (KLR) where it was held that where an employer neither houses an employee nor pays the statutory house allowance, the claim must succeed. The statutory house allowance at 15% of the basic minimum monthly wage of Kshs. 13,572.90 is Kshs. 2,035.93 per month. For 30 months the total is Kshs. 61,078.05. The trial court erred in dismissing this claim. This goes on to answer the 1st issue for determination. 18.On the 2nd issue, regulation 6 of the Wages (Protective Security Guards) Order, 1998 provides that the normal working week of all employees including day and night guards shall be 52 hours spread over six days. Regulation 7 prescribes that an employee who works in excess of those normal hours is entitled to overtime at one-and-a-half times the normal hourly rate, and at twice the normal hourly rate for any time worked on a rest day. The hourly rate is to be computed as one two-hundred-and-twenty-fifth of the employee's basic minimum monthly wage. Regulation 9 prescribes that where an employee is required to work on a public holiday, he shall be paid double the normal rate of wages per hour in addition to the ordinary daily pay. Regulation 8 entitles every employee to one rest day in every period of seven days. 19.On overtime, the Respondent's witness confirmed under cross-examination that the Appellant worked 12-hour shifts and that the Appellant's working arrangement involved approximately 72 hours per week. He admitted that he was not aware of the 52-hour statutory limit. The Appellant's evidence that he was not paid for overtime was unchallenged by any documentary record. Section 10(7) of the Employment Act, 2007 provides that where an employer fails to produce a written contract, the burden of proving or disproving an alleged term of employment lies on the employer. Section 74 requires employers to maintain records of working hours and wages paid. The Respondent produced neither payroll records, attendance sheets nor time sheets. The failure to maintain and produce records in discharge of a statutory obligation cannot operate to the Appellant's disadvantage. The Respondent's submission that the Appellant himself said he never asked to be paid for overtime does not extinguish a statutory entitlement. This court is guided by the authority of Mutunga v SGA Security Solutions Limited (Employment and Labour Relations Appeal E002 of 2022) [2022] KEELRC 1553 (KLR) where it was held that in the absence of contrary evidence from the respondent under section 10(7), there is a prima facie case that the appellant was subjected to regular overtime for the duration of the contract. The applicable hourly rate for a day watchman in Nairobi under the 2018 Order is Kshs. 121.30. This Court is further guided by the approach in the authority of Riley Falcon Security Services Limited v Watako (Appeal E076 of 2024) [2024] KEELRC 2795 (KLR) where the court, in the absence of particularised evidence of overtime worked across the entire employment period, confined the overtime award to the last 12 months of employment. The same approach commends itself here. Applying the formula — 20 hours of weekly overtime x Kshs. 121.30 x 1.5 x 52 weeks — yields Kshs. 189,228.00. This Court allows overtime in the sum and claim of Kshs. 189,228.00 20.On public holidays and rest days, the Appellant's claims under both heads rested entirely on bare assertion. He stated in his witness statement that he worked on public holidays and was never given rest days but he produced no attendance records, duty rosters, occurrence book entries or any documentary evidence establishing that he was specifically at work on those particular days. He gave no list of specific dates on which he worked during public holidays. The principle that he who alleges must prove applies squarely. The burden of proving that he worked on specific public holidays and rest days lay with the Appellant and he did not discharge it. The Respondent's failure to produce records under section 74 shifts the burden in respect of the terms of employment and wages paid — it does not relieve the Appellant of his own burden of proving that he actually worked beyond his normal schedule on specific days. The trial court was therefore correct indismissing both claims. This court upholds those findings. This partly answers the 2nd issue for determination. 21.On annual leave, the Appellant claimed compensation for two leave years at Kshs. 13,572.90 per year. The trial court rejected this claim on the basis of leave application forms produced by the Respondent showing that the Appellant took leave in April, 2019 and April, 2020. The Appellant denied signing those forms. In cross-examination, however, he conceded that he had seen the forms but denied the signatures were his, without producing any expert evidence or other corroboration for that denial. The trial court, having had the advantage of observing the Appellant's demeanour, accepted the Respondent's documentary evidence. This Court is not persuaded that the trial court plainly erred in that finding. The claim for annual leave accordingly fails. 22.On service gratuity, while the Respondent submitted that this issue was not raised as a ground in the Memorandum of Appeal, this Court finds that the claim was clearly pleaded in the memorandum of claim and forms part of the special damages that the Appellant seeks to have reinstated on appeal. The Respondent's witness confirmed under cross-examination that the Appellant was not enrolled in any pension scheme and that no NSSF deductions were made on his behalf at any point during employment. Section 35(6) of the Employment Act, 2007 provides that an employee who is not a member of a registered pension or provident fund is entitled to service pay for each year of service at the rate of fifteen days' basic wages. This court is guided by the authority of Wanyera v Central Isiolo Investment Limited (Appeal E002 of 2023) [2024] KEELRC 596 (KLR) where it was held that the legal mandate to register an employee with NSSF lies with the employer and the employer's failure to do so entitles the employee to service pay. The computation Kshs. 13,572.90 ÷ 26 x 15 x 2 years yields Kshs. 15,661.04. The claim for service gratuity is accordingly allowed. This againreinforces and answers the 2nd issue for determination. 23.On the 3rd issue, costs follow the event. As the appeal is partially allowed, each party shall bear its own costs of this appeal. 24.I am therefore inclined to partially allow the appeal and order relief as follows;i.Underpayment for the period January, 2018 to July, 2020……………Ksh.116,187.00ii.House allowance for the period January 2018 to July 2020……..……….Ksh.61,078.05iii.Overtime pay for the period August 2019 to July 2020 ………………...Ksh.189,228.00iv.Unpaid service gratuity ………………………………………….……..Ksh.15.661.04Total of Award……………………………………………………...Kshs. 382,154.09v.The claims for annual leave, public holiday pay, rest days and all prayers touching on termination and wrongful dismissal be and are hereby dismissed.vi.Interest on the total award under orders (i) to (iv) above shall run at court rates from the date of this judgment of court until payment in full.vii.The Respondent be and is hereby ordered to issue the Appellant with a Certificate of Service within 14 days of this judgment of court.viii.Each party shall bear their own costs of this appeal. DELIVERED, DATED AND SIGNED THIS 14TH DAY OF MAY 2026.D. K. NJAGI MARETEJUDGEAppearances:Mr. Wetaba instructed by Wetaba Were & Associates Advocates for the Appellant.Kerubo holding brief for Wainaina instructed by Kinyua Mwaniki & wainaina Advocates for the Respondent.