https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1784

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT NAIROBI** *(Before Hon. Lady Justice Monica Mbarũ)* **APPEAL NO. E389 OF 2025** **JOHN BOKE MWIKWABE APPELLANT** *VERSUS* **STRAIGHT SECURITY SERVICES LIMITED RESPONDENT** **[Being an appeal from the judgment of Hon. Charles Mwaniki, in Ruiru MCELRC No. E126 of 2024 delivered on 5th October 2025]** **JUDGMENT** The appeal arises from the judgment delivered on 5 October 2025 in Ruiru MCELRC No. E126 of 2024. The appellant filed his suit before the trial court on the basis that the Respondent employed him as a night watchman [guard] from 4 September 2021 and paid Ksh. 7,200 per month. There was no payment statement issued or a written contract. His work site was at High Point. His claim was that on 9 March 2023, while at work, the appellant sustained injuries on his left leg. He was taken to the hospital for treatment and was later informed by his supervisor that the company had granted him sick leave until he finished his treatment. Upon recovering, he visited the Respondent’s office but was informed by the supervisor that there was no position for him, as the company had opted to employ another guard to take his station while he was sick. His employment had been terminated, and he was directed to clear before any of his salary arrears or employment benefits could be paid. He cleared, but was never issued a termination letter, and the respondent alleged he had deserted duty. This resulted in unlawful and unfair termination of employment. He claimed the following dues: 1. Unpaid salary Ksh. 4,200.30 2. Salary underpayments Ksh. 36,217.40 3. One month's notice in lieu of notice: Ksh. 11,123.61. 4. Compensation for 12 months’ salary for wrongful dismissal Ksh. 133,483.32 5. Uniform deductions 4,000 6. Severance pay Kshs. 5,580.40 7. Unpaid amount for leave not taken from September 2021 to August 2022, Ksh. 16,023.96. 8. Overtime from 2021 September to 2022 April Ksh. 233,049.60. 9. Unremitted NSSF deductions Ksh 2,400.00 10. Unremitted NHIF deductions Kshs. 3,000 11. Unpaid public holidays 33,106.80 12. Rest days Kshs. 110,102.40 13. House allowance Ksh. 24,872.70 14. Interests 15. Certificate of Service 16. Costs of the suit. In response and counter-claim, the Respondent admitted that the Appellant was an employee of the Respondent from 20 March 2021 to 11 November 2022. On 9 September 2022, the Appellant alleged that he had sustained a work-related injury to his leg and was taken to Thika Level 5 Hospital. The accident was reported to the DOSH office at Thika on 14 September 2022 through DOSH Form 1. The Appellant was granted off-duty and requested to submit all sick leave documents to the office, but failed to do so. On 16 September 2022, the Respondent issued the Appellant a letter requiring him to submit his medical documents for WIBA insurance compensation, but he failed to do so. The Respondent was thereby obliged to dispatch a human resource officer to Thika Level 5 Hospital, accompanied by the Appellant. The doctors at the hospital declined to complete the DOSH Part 2 form or provide any medical report to the Appellant, as he had gone against the doctors’ prescribed treatment by removing his leg cast before his leg had completely healed and was therefore self-medicating against the doctors’ directive. On 14 October 2022, the Respondent informed DOSH Thika of the delay occasioned by the Appellant’s actions and commenced disciplinary action against the Appellant for failing to submit crucial medical documents. He was invited to a hearing on 1 November 2022, but the Appellant failed and refused to attend or provide any written defence. The disciplinary committee deliberated on the case and concluded that the Appellant’s actions raised serious concerns about discipline and safety, and recommended his termination from work. The Respondent paid all the Appellant’s dues. The Respondent prayed that the claim be dismissed with costs. In the counter-claim, the Respondent’s case was that the Appellant declined to vacate the premises given to him by the Respondent, which would have fetched a rental income of Ksh 4,000 per month. The Respondent therefore counter-claimed for Ksh 4,000 from 11 November 2022, when the Appellant declined to vacate the premises, up to the date he vacated the housing unit. The learned magistrate heard the parties and held that there were no medical documents before the court which could have been relied upon for the nature and extent of the Appellant’s injuries. Under section 30 of the Employment Act (the Act), it was the appellant's responsibility to provide evidence of incapacity to work, duly signed by a qualified medical practitioner or a person acting on the practitioner’s behalf, which the appellant did not do, which made his prolonged absence from work not justifiable. The Respondent’s decision to deal with the matter as a disciplinary issue cannot, therefore justified. The learned magistrate further held that the Appellant was invited to attend the disciplinary hearing and was duly served, but failed to attend. The court dismissed the Appellant’s explanation that he was not served with a letter to attend the hearing, given that he stayed in the premises provided by the Respondent. Aggrieved by the trial court’s judgment, the appellant has raised 23 grounds of appeal. In summary, the grounds are that the learned magistrate erred in law and fact by failing to properly evaluate the evidence presented by the Appellant, thereby arriving at a wrong decision that a proper process was followed and that the termination of employment was lawful and fair. The trial court also erred in evaluating continuing injuries, specifically salary underpayments, holiday pay, and leave, which were not disputed by the Respondent, and therefore failed to make an award in favour of the Appellant for the sum of Ksh. 233,049.60 on account of overtime hours. The appellant challenged the trial court’s findings regarding the counterclaim on the basis that awarding a monthly rent of Ksh. 4,000 per month from December 2022 to July 2024 was without any evidence. The appeal is also that there was an error in failing to give directions on the non-remittance of NSSF and NHIF statutory deductions, despite overwhelming evidence that the same were never remitted. Costs should have been awarded. On appeal, the appellant submitted that the respondent was required to show that efforts were made to contact him regarding the alleged desertion of duty, as held in **Evans Ochieng Oluoch vs Njimia Pharmaceuticals [2016] eKLR** that desertion amounts to misconduct and must be proved. The respondent must make some effort to contact an employee. The appellant was instructed to take a break after injuring his leg, but was never recalled. His employment was later terminated without proper procedures being followed. The respondent submitted that, due to the appellant’s prolonged absence from work and failure to comply with lawful instructions, the respondent issued a disciplinary notice; however, the appellant declined to attend despite being informed and residing on the same premises. The trial court correctly found that the respondent had valid grounds to treat the issue as a disciplinary matter and lawfully terminate the appellant. In **Pius Machafu Isindu v Lavington Security [2017]** **eKLR**, the court held that an employee alleging unfair termination bears the evidential burden of proving the alleged unfairness before the employer is called upon to justify the termination of employment. **Determination** This being a first appeal, the court may review the record, reassess the findings, and reach its conclusion. However, consider that the trial court had the benefit of hearing the witnesses. The appellant asserts that he got injured while at work on 9 March 2023. He was given sick leave until he finished treatment. However, his case was that when he returned, his supervisor told him his position had been allocated to another person. He contended that his alleged desertion of duty was not proved, and the respondent did not demonstrate the efforts made to trace him. The respondent admitted that the appellant had been granted sick leave, but he declined to submit the necessary medical records. He frustrated the efforts taken in this regard. He was thus issued with notice to show cause and attend a disciplinary hearing, but failed to attend, resulting in the termination of his employment. The respondent also claimed the house rent for the housing the applicant occupied, but failed to vacate at the end of his employment. Indeed, under an employer who alleges desertion of duty, the employer must prove the efforts taken to trace the employee, as submitted by the appellant. However, in his case, he was lawfully allowed to be sick off work due to a work injury. This is in terms of section 30 of the Act. However, upon resuming duty, the applicant was required under section 34 of the Act to produce the Medical Certificate on his incapacity, hence his absence from duty. He failed to oblige the respondent’s directions. The respondent's response to send its officers to the Thika Level % hospital to follow up on the appellant's treatment is not challenged. Where indeed the appellant was sick and required to be absent from work, he had the legal duty to produce the treatment notes of medical certification from the government facility as held in **Ayub Kombe Ziro v Umoja Rubber Products Limited [2022] KEELRC 141 (KLR).** Although the absence from work was permitted, in return, the employee was required to produce the necessary medical certificates. The appellant did not produce any credible evidence to support his absence, as held in **Stanley Mombo Amuti v Kenya Anti-Corruption Commission [2019] eKLR** and [**Muya v Fruitplus Ltd [2024] KEELRC 571 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/571/eng%402024-03-14)**.** In this regard, the absence from work from 9 March 2023 was not justified—the resulting termination of employment was for good cause. The learned magistrate analysed these facts and applied the law correctly. Regarding the claims, the learned magistrate analysed the claim for statutory payments. The record filed was post the employment period. The payment of statutory dues is to the statutory body, not the employee. The appellant submitted his NSSF and HIF statements confirming he was registered, and hence any payments due are not to his person. Regarding overtime, the learned magistrate found that a blanket claim cannot be justified. However, work records of working hours should be kept by the employer, not the employee. The assertion that the employee would report to work from 6 am to 6 pm was not challenged in any material way. The respondent, the employer, had a legal duty under sections 10(6) and (7) of the Act to produce the work records. As a security guard, the appellant’s employment was regulated by the Regulation of Wages (Protective Security Services) Order, 1998. Indeed, in **Yaa v SGA Security Solutions Limited [2022] KEELRC 1553 (KLR),** the court held that it takes judicial notice of these orders as part of its mandate. Where the employee is regulated under a framework based on the law and the Labour Institutions Act and the Regulation of Wages thereunder, such orders apply directly to the subject employee. In this regard, Regulation 6 of the Order provides for work hours for persons employed as security guards: ***The normal working week of all employees, including day and night guards, shall be fifty-two hours of work spread over six days of the week.*** The application ran for 12 hours each day over the course of a week. The Appellant's cumulative working hours were 72, against the 52 prescribed by the Wage Order. With no record of compensation for the 20 extra hours, the claim for overtime pay is justified under the Regulation of Wages (Protective Security Services) Order, 1998. However, overtime is a continuing injury under section 89 of the Act. It should be claimed within 12 months of the date of cessation. Employment ceased on 9 March 2023. The claim was filed in April 2024. The lapse in failing to file the claim in time to claim the overtime work hours is not addressed. Similarly, the underpayments and rest days, being continuing injuries, should have been addressed in terms of section 89 of the Act, as held in **Citi Bus Limited v Nene [2026] KEELRC 51 (KLR).** Although the learned magistrate dismissed these claims for different reasons, including lack of proof, under the law they should be assessed and awarded were due. Save for the weight of adherence to section 89 of the Act, all terminal dues available under the law should be assessed on the merits, as held in **Ngeno v Public Service Commission & 3 others [2026] KEELRC 1674 (KLR)** and **The German School Society & another v Ohany & another [2023] KECA 894 (KLR)**. The court held: *The principles underlying continuing wrongs and recurring/successive Wrongs have been applied in employment disputes. A ‘continuing wrong’ refers to a single wrongful act that results in a continuing injury, while ‘recurring or successive wrongs’ are those that occur periodically, with each instance giving rise to a distinct and separate cause of action.* Of particular interest is the claim for housing allowance. There is a counterclaim regarding the appellant’s continued occupation of the respondent’s housing. Under section 31 of the Act, where housing is provided, an employee is not entitled to a housing allowance. Regarding the claim for work on public holidays, these are special days gazetted by the Minister. They do not form a general claim. Each public holiday worked must be particularised. There is a claim for unpaid salary. The particulars are that there was work for 9 days in March 2023. Indeed, this was the last date the appellant was on the shop floor. This confirms permission to take sick leave without returning. The respondent has not provided proof of payment until the last date. Under section 18 of the Act, payment is due for work done. The sum of Ksh. 4,200 is due. Notice pay and compensation upon abandonment of work are reliefs not available to the appellant. Having frustrated his employment, such do not accrue. However, the respondent has not explained the uniform deduction of Ksh. 4,000. The employer has a duty to provide the employee with the necessary tools based on the nature of the employment. There should be no such deduction; at the end of employment, any such amount is due to the employee. The evidence that the applicant attended and was cleared by his supervisor was not challenged. Ksh. 4,000 for uniform deductions is payable to the appellant. The claim for severance pay only accrues under section 40 of the Act. The appellant’s claim was not based on redundancy. Regarding the claim for leave, under section 28 of the Act, annual leave is a right. The employer has the duty to produce records showing how annual leave was allocated to the employee. His absence from the shop floor from 9 March 2023, notwithstanding, where there was a right in employment, such accrues and is payable. The claim for Ksh. 16,023.96 is justified. On the counter-claim, this was well assessed and allocated. An employee who is accommodated by the employer under section 31 is not entitled to claim house allowance, and at the end of his employment he should vacate. The continued occupation of the employer's assigned housing attracts payment of the due rent. On costs, the appeal is largely without merit. Costs are not due. **The appeal is without merit, save for the award of pay for days worked, Ksh. 4,200; leave pay, Ksh. 16,023.96; and a uniform deduction of Ksh. 4,000, which shall be offset against the counterclaim as awarded if this has not been settled. Judgment in Ruiru MCELRC No. E126 of 2024 is hereby reviewed to the extent addressed above. Each party shall meet its own costs.** **Orders accordingly.** **Delivered in open court this 29th day of June 2026** **M. MBARŨ** **JUDGE** **In the presence of:** **Court Assistant: Samuel Maruga** ……………………………………………… and ………………….…………………………..