https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2255

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR** **RELATIONS COURT AT NAKURU** **APPEAL NUMBER E095 OF 2025** **BETWEEEN** JAMES MACHARIA KURIA .................................................................... APPELLANT **AND** HATARI SECURITY LIMITED ............................................................ RESPONDENT [A Partial Appeal from the Judgment of the Hon. L. Akoth, dated 19th December 2025, in Nakuru C.M.E.L.R.C Cause No. E313 of 2022, between the Parties herein] *Rika J* *Court Assistant: Emmanuel Kiprono* *\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_* *Maragia Ogaro & Company Advocates for the Appellant* *GNK & Associates, Advocates for the Respondent* *\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_* **JUDGMENT** 1. The Appellant was employed by the Respondent as a night guard. 2. He lodged the Claim at the Trial Court, alleging that the Respondent unfairly terminated his contract. 3. He sought compensation for unfair termination and a raft of terminal benefits. 4. In its Judgment, the Trial Court upheld the Respondent’s position that the Appellant resigned, and concluded that he was not entitled to compensation and notice pay. 5. He was granted terminal benefits including underpayment of salary; annual leave; off-duty days; overtime; uniform refund; costs; and interest. 6. He filed this Appeal, faulting the Trial Court for failing to establish that he resigned; failing to grant to him compensation and notice pay; failure to award him overtime, public holidays and leave consistent with established proof; and failure to make award for reimbursement of unlawful deductions. 7. He proposes that the Appeal is allowed; the finding that he resigned set aside; he is awarded public holiday pay and reimbursed unlawful deductions; the amounts awarded on overtime, off-duty days, and leave are enhanced; and the Respondent bears the costs of the Appeal. 8. It was agreed by the Parties that the Appeal is considered and determined on the strength of the Record of Appeal and the Parties’ Submissions. 9. They confirmed filing and exchange of submissions at the last appearance before the Court, on 11th May 2026. 10. The Appellant submits that the Trial Court did not consider that the resignation letter was undated. It was not indicated when it was received by the Respondent. 11. He submits that the Respondent terminated his contract. He is entitled to notice and compensation, and the Trial Court erred by denying him these prayers. 12. The Respondent deducted from the Appellant’s salary Kshs. 2,000, that had been paid as salary advance. Advance was not taxable, and the Trial Court ought to have granted the same for 54 months, at Kshs. 108,000. 13. The Appellant was emphatic in his witness statement, on the public holidays worked, and the Trial Court erred, in finding that he did not prove holidays worked. He established that he worked 47 public holidays. 14. He states that he worked 5,640 excess hours, but was only granted Kshs, 19,502 in overtime pay. He merits the difference at Kshs. 826,620. 15. The Appellant submits that he established he worked for 30 days a month. He did not have off-duty days. He merits off-duty days at Kshs. 544,555. 16. He was entitled to annual leave from June 2018 to November 2022. The Trial Court erred, in finding that he was entitled to annual leave, from June 2020 to November 2022. 17. The Respondent submits that the Appellant never established that his resignation letter was forged. He who alleges must prove. 18. The Appellant did not prove that his contract was terminated by the Respondent, and if so, that termination was unfair. 19. The resignation letter was signed by the Appellant. It was presented to the Respondent. The Appellant also presented a clearance form. Resignation was voluntary. 20. The Appellant did not discharge his burden, in establishing that he worked on given public holidays. He simply listed all the public holidays in a year. 21. Salary advance was a form of a loan, extended to the Appellant, recoverable from his next monthly salary. The Trial Court did not err, in rejecting his claim for reimbursement. 22. There was nothing placed before the Trial Court, to justify payment of overtime. The Appellant was granted annual leave, as an when he applied for the same. He did not establish that he was denied off-duty days. 23. The Appeal has no merit. The Respondent urges the Court to dismiss the Appeal with costs. The Court Finds: - 1. The Record of Appeal has a major flaw. From page 134 to 136, proceedings relate to **Nakuru C.M.E.L.R.C Cause No. E213 of 2022, James Macharia Kuria v. Hatari Security Limited**. 2. From page 137, the proceedings relate **Nakuru C.M.E.L.R.C Cause No. E214 OF 2022, Wycliffe Osundwa Mango v. Hatari Security Limited**. 3. The evidence recorded by the Trial Court, as borne out in the Record of Appeal, is therefore mixed-up, and considerably unhelpful to the Court, in having a complete overview, of what transpired at the Trial Court. 4. The Record of Appeal could be deemed to be fatally defective warranting its striking, but in the interest of justice, the Court shall look into the merit of the Appeal. 5. From the other documents on record, it is clear that the Appellant wrote a letter of resignation in his own handwriting, addressed to the Respondent’s Regional Manager, Nakuru. 6. That he omitted to indicate the date of writing in his letter, was his own default, which did not affect the legal validity of resignation. 7. He signed the letter and gave all his personal details, including his post office box number, mobile phone number, and personnel number. 8. His allegation that the resignation letter was forged, was false, and affected his overall credibility as a witness. 9. The letter was corroborated by other evidence. He filled and signed a clearance form. 10. The Respondent’s Human Resource Manager, Bernard Njoora, acknowledged receipt of the resignation letter, in his letter dated 29th November 2022. 11. His Statement of Claim suggested that he was reassigned to a different site to guard, a decision he deemed unfair. He pleaded that the decision was abrupt and without consultation. 12. It would be a logical deduction, that it was against this background, that he tendered his resignation. 13. There are other documents on record, written in the same handwriting as the resignation letter. His letter dated 31st March 2020, requesting for annual leave bears the same unmistakeable handwriting. The leave application forms bear the same handwriting. The clearance form bears the same handwriting and signature. How did his resignation letter, betraying the same handwriting, become a forgery? 14. The Trial Court did not err, in finding that the Appellant failed to tender expert evidence, to disprove his authorship of the letter of resignation. 15. He voluntarily terminated his own contract, and was not entitled to notice pay and compensation for unfair termination, as concluded by the Trial Court. 16. The Grounds of Appeal relating to grant or enhancement of amounts granted, under various terminal benefits, are similarly without foundation. 17. The figures were never pleaded in his Statement of Claim, or elaborated in his oral evidence before Court. 18. The figures pursued in his submissions and supplementary submissions before the Trial Court, are inconsistent with the figures pursued in his submissions on Appeal. 19. The figures claimed in his submissions on Appeal beggar belief. His monthly salary as submitted was Kshs. 19,502. He worked for 4 years, earning at most, Kshs. 936,096 in salary, over the period. 20. How does he justify a claim for overtime pay of Kshs. 826,620, close to the entire salary earned over the 4 years? In addition, he pursues off-duty days at Kshs. 544,555, over half his salary for the 4 years worked. 21. The figures put into question, the credibility of the Appellant, which was tainted from the inception, by his disavowal or his resignation letter. 22. He appears to have set off early, on a fishing expedition. He was granted by the Trial Court what he merited. 23. This Court cautioned litigants appearing before the employment and labour relations jurisdiction, in **Wekesa v. Mount Kenya University [2024] KEELRC 538 [KLR**], against turning Claims for unfair termination, into a cash-grab industry. 24. The Appeal has no merit. **IT IS ORDERED:** - 1. **The Appeal is declined.** 2. **Costs to the Respondent.** Dated, signed and delivered electronically at Nakuru, under Rule 68[5]of the E&LRC [Procedure] Rules, 2024, this 30th day of July 2026. James Rika Judge