https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4649

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MACHAKOS ELRC APPEAL NO. E008 OF 2025 EUGENE LITIEMA INDAKO………………………………………………………………………………...CLAIMANT * VS – SECUREX AGENCIES (K) LIMITED………………………..………………………...…………...…RESPONDENT (Being an Appeal from the Judgment and Decree of the Hon. D. Kuto (SPM) delivered on 28th January 2025 in Mavoko MCELRC No. 126 of 2019) CORAM Before Lady Justice Jemimah Keli C/A Otieno JUDGMENT 1. The Appellant herein, being dissatisfied with the Judgment and Decree of the Hon. D. Kuto (SPM) delivered on 28th January 2025 in Mavoko MCELRC No. 126 of 2019 between the parties filed a Memorandum of Appeal dated the 26th February 2025 seeking the following orders: - * 1. The judgment by Honourable Kuto dated 28th January 2025 be set aside entirely. 2. Judgment be entered in line with the memorandum of claim as contained in the record of appeal. 3. Appellant be awarded costs of the appeal. GROUNDS OF THE APPEAL 1. The Honourable Magistrate erred in fact by failing to analyse the evidence on record and arrived at a wrong conclusion thereby dismissing the suit. 2. The Honourable Magistrate erred in fact by holding that the claimant was lawfully terminated notwithstanding the fact there was no evidence to show he was invited for a disciplinary hearing nor one was held with regard to the reason for termination. 3. The Honourable Magistrate erred in declining the special damages notwithstanding the evidence and submissions. 4. The Honourable Magistrate erred in law by tying the special damages prayers to the prayer of termination notwithstanding the fact that no employment records were availed to rebut the same. 5. The Honourable Magistrate erred in both law and fact by failing to take into consideration minimum wage orders in arriving at judgement not to award special damages. 6. The Honourable Magistrate erred in law by failing to consider the claimant's submissions. BACKGROUND TO THE APPEAL 1. The Claimant/Appellant filed a claim against the Respondent vide a memorandum of claim dated the 7th of October 2019 seeking the following orders: - * 1. A declaration that the claimant's termination from employment by the respondent was unlawful, malicious, unprocedural and an infringement on his constitutional rights. 2. Maximum compensation for wrongful dismissal. 3. Special damages One month pay in lieu of notice Kshs. 16,144/- Damages for wrongful dismissal Kshs. 193,728/- Service Gratuity Kshs. 67,059.69 Overtime Kshs. 383,454/- d) Interest on the total e) Costs of the cause. f) Any other and further relief this Honourable Court may deem fit and just to award under the circumstances. (pages 10-16 of Appellant’s ROA dated 3rd February 2026) 1. Alongside the claim, the Claimant/Appellant filed his list of witnesses dated 7th October 2019; witness statement dated 10th September 2019; and list of documents dated 7th October 2019 with the bundle attached (pages 18-52 of ROA). The Claimant later filed a further list of documents dated 6th January 2020 (pages 110-112 of ROA). 2. The claim was opposed by the Respondent who entered appearance and filed a reply to claim dated 27th December 2019 (pages 53-58 of ROA). They also filed a list of witnesses dated 27th December 2019; witness statement of Samuel Onkangi of even date; and list of documents of even date with the bundle attached (pages 59-99 of ROA). 3. The Claimant/Appellant’s case was heard on 26th May 2021 with the Claimant testifying. He adopted his filed witness statement as his evidence in chief, and produced his documents as exhibits. He was cross-examined by counsel for the Respondent, Mr. Wanyaga (pages 115-117 of ROA and pages 9-11 of Supplementary ROA dated 3rd June 2026). 4. The Respondent’s case was heard on the same day with the Respondent calling one witness Dorothy Aange as DW1. She relied on her filed witness statement as her evidence in chief and produced the Respondent’s documents as exhibits. She was not cross examined and did not finish giving her testimony as the Respondent’s Advocate indicated that he was experiencing internet challenges. The defence case was later closed for non-attendance (pages 117-121 of ROA and 11-12 of Supplementary ROA). 5. The trial court delivered its Judgment on 28th January 2024, dismissing the Claimant/Appellant’s suit, with costs (judgment at pages 123-127 of ROA). DETERMINATION 1. The appeal was canvassed through written submissions. Both parties filed. Issues for determination 1. Both the Appellant and Respondent submitted their respective arguments on the appeal in their submissions dated 3rd May 2026 and 1st June 2026. 2. The court, upon reviewing the grounds of appeal, identified the issues for determination in the appeal as – 1. Whether the termination of employment was lawful and fair. 2. Whether the trial court erred in fact and law in failing to award relief sought. Whether the termination of employment was lawful and fair 1. The appeal is based on the following grounds: i) The learned magistrate erred in fact by failing to analyse the evidence on record and arrived at a wrong conclusion thereby dismissing the suit; ii) The learned magistrate erred in fact by holding that the claimant was lawfully terminated notwithstanding the fact there was no evidence to show he was invited for a disciplinary hearing nor one was held with regard to the reason for termination; iii) The learned magistrate erred in declining the special damages notwithstanding the evidence and submissions; iv) The learned magistrate erred in law by tying the special damages prayers to the prayer of termination notwithstanding the fact that no employment records were availed to rebut the same; v) The learned magistrate erred in both law and fact by failing to take into consideration minimum wage orders in arriving at judgement not to award special damages; vi) The learned magistrate erred in law by failing to consider the claimant's submissions 1. This being a first appellate court, it was held in Selle v Associated Motor Boat Co. [1968] EA 123 that:- *“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”* 2. The proof of employment claims is in accordance with section 47(5) of the Employment Act, which states—‘For any complaint of unfair termination of employment or wrongful dismissal, the burden of proving that such unfair termination or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer.’ 3. The appellant filed his appointment letter dated 1st May 2014 effective 1st May 2014 as a guard. The appellant contended that on 26th June 2019, he was issued with a show cause following an incident at the client's workplace, where he was accused of an altercation with the staff of the client and a threat to beat him. The Appellant responded vide letter dated 26th June 2019, he was invited to disciplinary hearing vide letter dated 26th June 2019. The minutes of the disciplinary hearing were dated 28th June 2019. Vide letter of 28th June 2019 the Appellant was issued with letter of 2nd warning over the incident. That on 3rd July 2019 the Appellant was issued with show cause over postings on face book which were described in the letter as provocative. The Appellant responded and said he stood by the content of the Facebook post and had no regrets. 4. A letter was issued by the Ministry of Labour dated 8th July 2019 to the Respondent to effect that the Claimant had not been assigned work since 22nd June 2019 and requested for payment of terminal dues. The employer responded vide letter dated 11th July 2019 and informed the labour officer that the Appellant was absent from work without authority and directed that he be informed to report to the main Parklands office within 7 days, failing which the employer would terminate his services. 5. The employer issued the Appellant a further show cause notice dated 10th July 2019. It stated he was absent from duty from 21st June 2019 without permission and failed to communicate his whereabouts. 6. He was also issued a show cause notice dated 11th July 2019 regarding a Facebook post, indicating failure to obey the summons to report to the Human Resources office, and failure to respond to the show cause on 3rd July 2019 at 9 Riverside Securex Offices. Additionally, he reported to the labour officer on 8th July 2019 that his services had been terminated. 7. The Appellant responded to the show cause and said he did not regret the Facebook post. The Appellant was issued with a further letter dated 19th July 2019 for a disciplinary hearing on show cause dated 19th July 2019 (supra). Vide his advocates, Wetaba Were & Associates Advocates, the Appellant requested to be availed with the complaints under the show cause and asked for postponement under letter dated 23rd July 2019. The Respondent vide letter dated 25th July 2019 informed the advocates that the request to post pone the hearing was accepted and a new date given of 31st July 2019 at 9.00 a.m. The Respondent stated the show cause had details of relevant complaints and the appellant could visit the Human Resource office at Parklands for any clarification. A notice of further hearing of 25th July 2019 followed. The minutes for the disciplinary hearing of 31st July 2019 were produced. The court noted the witness produced the document but was not available for cross-examination. The Appellant did not dispute the content of the documents. I garnered the Appellant to say the notice to show cause was different from the charge at the hearing before the employer. 8. The court noted the proceedings were on the Facebook posts, the Appellant was recorded not to have responded and was found guilty of insubordination, absenteeism and for summary dismissal. 9. The summary dismissal letter dated 1st August 2019 gave reason for termination based on the show cause of 19th July 2019 and for failing to respond as per the show cause letter, and was guilty of section 44 (d) and (e). He was also accused of being absent from duty without leave or lawful cause contrary to section 44(a). The letter gave the appellant 14 days to appeal if he was not satisfied with the determination. On evaluation of the evidence, the trial court found fairness in the termination. 10. The ground of appeal is that the termination was not lawful. I have carefully perused the events leading to the termination. The Appellant admitted to the post on Facebook, which was a mouthful of the client and had no remorse and failed to respond in the proceedings. That fits within the definition of insubordination. 11. The Appellant admitted he never went back to work after the Facebook posting. He stated he went to labour office where the labour officer asked for his terminal dues. The evidence on record and testimony of the Appellant support the reasons for the termination. 12. The foregoing reasons existed as per section 43 of the Employment Act. The threshold for determination of fairness of termination of employment is according to the provisions of section 45 (2) of the Employment Act to wit:- ‘45(2) A termination of employment by an employer is unfair if the employer fails to prove— (a) that the reason for the termination is valid (b) that the reason for the termination is a fair reason— (i) related to the employees conduct, capacity or compatibility; or (ii) based on the operational requirements of the employer; and (c) that the employment was terminated in accordance with fair procedure.’’ To pass the fairness test the termination must pass the substantive (in terms of reasons , section 43 ) fairness and the procedural fairness under section 41 of the Employment Act. I found that the trial court's decision was supported by the documents before it and consistent with the Appellant's evidence at cross-examination. I find no basis to interfere with the decision of the trial court on the fairness in the termination. (Mbogo & Shah). Whether the trial court erred in fact and law in failing to award relief sought 1. The court upheld the finding of lawful and fair termination by the trial court. The notice payment and compensation were not due. 2. On the claim for service gratuity, the basis is paragraph 17 of the Protection of Wages (Protective Service Order) – for 18 days for each year of service. The Respondent, however, stated that gratuity was not included in the contract and further not payable since the Appellant was under NSSF. The trial court held that the Claimant was paid all his dues, including gratuity. During the hearing, the Appellant informed the court he was paid Kshs.62,000/=. I am inclined to agree with the trial court that the Appellant was paid gratuity. Indeed, the issue was not raised during re-examination or in the appeal submissions. Overtime claim 1. The grounds of appeal were that the trial court did not consider evidence and submissions, no employment record was produced to rebut the claim of overtime, and the trial court did not take into account minimum wages. 2. During cross-examination, the Appellant testified as follows:- “The payslip shows overtime of Kshs.7,460. Yes I was paid overtime”.(page 11 of the supplementary ROA).At re-examination, the Appellant contended that the payslip did not show the hourly rate of overtime and did not show hours paid for overtime. It is trite that overtime is special damages and must be proved strictly. The Appellant sought overtime from May 2014 to July 2019. The appellant admitted he was paid overtime at cross-examination. He bore the burden to prove the extra hours outside the paid overtime. He never made any claim during employment. The court holds that the claim for extra overtime payment was not proved on a balance of probabilities. The court was not persuaded to interfere with the decision of the trial court. (Mbogo vs. Shah). 1. The appeal is held to lack merit and is dismissed. To temper justice with mercy , I make no order as to costs. 2. The file is marked as closed. 3. It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 17TH DAY OF JULY, 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Appellant – absent Respondent - Mwangi