https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1929

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI ELRC APPEAL NO. E312 OF 2025 SIMON SHIJENJE LITALI…………………………………………………………CLAIMANT VERSUS SEKURA INTERNATIONAL LIMITED………………………………...………RESPONDENT *(Being an Appeal from the* *Judgment and Decree of the Hon. T.M. Orlando (PM) delivered on 20th June 2025 in Nairobi CMELRC No. E286 of 2024)* CORAM Before Lady Justice Jemimah Keli C/A Otieno JUDGMENT 1. The Appellant herein, being dissatisfied with the Judgment and Decree of the Hon. T.M. Orlando (PM) delivered on 20th June 2025 in Nairobi CMELRC No. E286 of 2024 between the parties filed a Memorandum of Appeal dated the 1st July 2025 seeking the following orders:- * 1. Allow this appeal; 2. Set aside the Judgment of the learned trial Magistrate delivered on 20th June 2025; 3. Enter Judgment in favour of the Appellant for the sum of Kshs. 1,003,050.27 being terminal dues as originally claimed; 4. Award interest on the said sum at court rates from the date of filing the claim to the date of full payment; 5. Award costs of this appeal and the proceedings in the court below; 6. Grant such other relief as this Honourable Court may deem fit. GROUNDS OF THE APPEAL 1. The Honourable Trial Magistrate erred in law and fact by misapplying Section 90 of the Employment Act, 2007 to dismiss the claim for unpaid house allowance worth Kshs. 151,200/=. 2. The Honourable Trial Magistrate erred in law and fact by dismissing the overtime claim of Kshs. 697,870/= without proper evaluation of the documentary evidence adduced by the Appellant. 3. The Honourable Trial Magistrate erred in law and fact by dismissing the claim for unpaid public holidays worth Kshs. 73,230.77 without proper consideration of the evidence presented. 4. The Honourable Trial Magistrate erred by failing to properly scrutinize the Respondent's evidence, particularly the payslips stamped in 2024 for periods between 2018-20211 which raised serious questions about their authenticity. 5. The Honourable Trial Magistrate erred by awarding only Kshs. 17,750/= for uniform refund instead of the claimed Kshs. 30,000/= without providing adequate reasons for the reduction. 6. The Honourable Trial Magistrate erred by placing an unreasonably high burden of proof on the Appellant while failing to consider the Respondent's duty to maintain proper employment records as required under the Employment Act. 7. The Honourable Trial Magistrate erred by dismissing the underpayment claim of Kshs. 36,049.50/= without considering the minimum wage regulations applicable to the Appellant's position. BACKGROUND TO THE APPEAL 1. The Claimant/Appellant filed a claim against the Respondent vide a statement of claim dated the 20th of February 2024 seeking the following orders: - 2. The Claimant be paid his terminal dues as set out in paragraph 10 hereinabove amounting to Ksh. 1,003,050.27. 3. The Honourable Court do issue such orders and give such directions as it may deem fit to meet the ends of justice. 4. The Respondents to pay the costs of this Claim from the date of filing the same until payment in full. 5. Interest on (I) and (iii) above at the court rates. (pages 4-6 of Appellant’s ROA dated 15th December 2025) 1. The Claimant/Appellant filed his list of witnesses dated 20th February 2024; witness statement of even date; and list of documents of even date with the bundle of documents attached (pages 8-30 of ROA). He later filed a supplementary list and bundle of documents dated 15th April 2025 (pages 75-83 of ROA). 2. The claim was opposed by the Respondent who entered appearance and filed a response dated 19th August 2024 (pages 32-35 of ROA). They also filed a list of witnesses dated 14th April 2025; witness statement of SOPHIA MURIITHI of even date; and list and bundle of documents of even date (pages 36-73 of ROA). 3. To counter the Respondent’s response, the Claimant/Appellant filed a Reply dated 20th August 2024 (page 74 of ROA). 4. The parties’ case was canvassed by way of written submissions (pages 102-103 of ROA). Thereafter, the court delivered its Judgment on 20th June 2025 partially allowing the Claimant/Appellant’s claims in respect of leave pay, and uniform refund, totaling Kshs. 32, 450/-, with an order for each party to bear their own costs (judgment at pages 104-106 of ROA). DETERMINATION 1. The appeal was canvassed through written submissions. Both parties filed. Issues for determination 1. The Appellant, in his submissions dated 19th February 2025 (sic), submitted generally on the grounds of appeal. 2. Conversely, in their submissions dated 13th March 2026, the Respondent identified a single issue for determination, namely, whether the Appeal should be granted. 3. The court found that the issue for determination by the parties was whether the appeal had merit. 4. The grounds of appeal were as follows- 5. The Honourable Trial Magistrate erred in law and fact by misapplying Section 90 of the Employment Act, 2007 to dismiss the claim for unpaid house allowance worth Kshs. 151,200/=. 6. The Honourable Trial Magistrate erred in law and fact by dismissing the overtime claim of Kshs. 697,870/= without proper evaluation of the documentary evidence adduced by the Appellant. 7. The Honourable Trial Magistrate erred in law and fact by dismissing the claim for unpaid public holidays worth Kshs. 73,230.77 without proper consideration of the evidence presented. 8. The Honourable Trial Magistrate erred by failing to properly scrutinize the Respondent's evidence, particularly the payslips stamped in 2024 for periods between 2018-20211 which raised serious questions about their authenticity. 9. The Honourable Trial Magistrate erred by awarding only Kshs. 17,750/= for uniform refund instead of the claimed Kshs. 30,000/= without providing adequate reasons for the reduction. 10. The Honourable Trial Magistrate erred by placing an unreasonably high burden of proof on the Appellant while failing to consider the Respondent's duty to maintain proper employment records as required under the Employment Act. 11. The Honourable Trial Magistrate erred by dismissing the underpayment claim of Kshs. 36,049.50/= without considering the minimum wage regulations applicable to the Appellant's position. ### On the 1st ground - The Honourable Trial Magistrate erred in law and fact by misapplying Section 90 of the Employment Act, 2007, in dismissing the claim for unpaid house allowance worth Kshs. 151,200/=. The court, upon perusal of the pleadings before it, found that the appellant resigned from employment on 2nd August 2023. The court determined that this was when the cause of action for the claim of terminal dues arose. The claim was dated 20th February 2024; summons were issued by the court on 22nd February 2024 and served on 28th February 2024 (summons and claim at pages 3–6 ROA). All this occurred within 12 months of the termination. Consequently, the court holds that the trial court erred in fact and law by holding that the claims, which involved injury, were time-barred under section 90 (now 89) of the Employment Act. That section requires injury claims to be filed within 12 months of cessation, in this case, the termination of employment on 2nd August 2023. A claim filed on or around 22nd February 2024, when the summons were issued, is within the 12-month period. Section 89 (formerly 90) of the Employment Act states— ‘Limitation Notwithstanding the provisions of section [4(1)](https://new.kenyalaw.org/akn/ke/act/1968/21/~part_II__sec_4__subsec_1) of the Limitation of Actions Act ([Cap. 22](https://new.kenyalaw.org/akn/ke/act/1968/21)), no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained or in the case of continuing injury or damage within twelve months next after the cessation thereof.’ The claim was within the timelines. The decision of the trial court to the contrary is set aside. 1. On claim of Housing the same was dismissed on 2 reasons – 1) that no proof that salary did not include housing and claim not brought within 1 year. On the later I already ruled claim was within 12 months of termination of employment. On the former the parties produced different payslips. Both parties produced December 2020 payslips. The payslip produced by the Appellant indicate house allowance was paid (page 82 of ROA). So did one by Respondent (page 51 of ROA). The contract of employment signed by employee on 17th September 2017 had housing. I held the claim was within the timelines under section 89 of the Employment Act. (page 45.)I hold the claim for housing was without merit and there was evidence of housing in contract and sample payslip. 2. On uniform refund claim- the court held the presented computation was not challenged. The Appellant submitted that the trial court did not justify its finding. The court, on perusal of the payslips, did not find any payslip with uniform deduction of KShs.750 post July 2019 when the Respondent says the same was stopped. The appeal on the issue is disallowed. The finding is supported by evidence before trial court. 3. On claim for holidays payment – The parties produced different payslips before the trial court. The Claimant produced payslips indicating 30 days worked (pages 15 -18 and 76 – 83 of ROA). Conversely, the Respondent produced sample payslips which had material differences than those of the Appellant. (pages 51 – 54). Both parties accused each other of producing fake payslips. The Appellant relied on his payslips to prove overtime and holiday pay claims. On holiday pay claims the Respondent challenged the claim of working 30 days and 68 holidays. The Respondent relied on payslip of December 2020 to indicate the Appellant was paid for holiday allowance. The version produced by the Appellant states others allowance (page 82). The Respondent stated the payslip was manipulated to change holiday allowances to ‘others’ allowances. The Respondent submitted the Appellant deceived court by stating Ramadhan 23rd March 2023 and 4th July 2020 (of Benjamin Mkapa) were public holidays yet not gazetted as such in Kenya. (pages 7 and 8 of the claimant’s witness statement). The foregoing was true and tainted the credibility of the claim of public holidays. On the authenticity of the payslips on scrutiny of the payslips relied on by the Appellant, I noted obvious alterations as the figures did not add up in payslip of December 2018 (page 77) and of December 2018 (page 83). The court held that it was more probable that not the payslips produced by the appellant before the trial court were manipulated to suit the claim of holiday pay. The claim fails for the foregoing reasons. 4. On overtime claim- the court noted from the worksheets produced by the Appellant he did not work continuously (pages 19-20 ROA). There was also evidence he was paid overtime allowances in some of the payslips produced by the respondent. I found no admission of any overtime amount in defence statements. I find no basis to interfere with decision of the trial court. (Mbogo vs Shah.) 5. On underpayment claim- the Appellant hinged claim on being night guard. He who alleges proves. The worksheets produced by Appellant indicate he reported at 05.40 hours which is morning and left 17.45 hours. The claim is based on false allegation and is thus without merit. 6. In the upshot, I find no basis to interfere with the decision of the trial court. (Mbogo vs. Shah). The appeal is dismissed. The Court upheld the judgment and decree of the Hon. T.M. Orlando (PM) delivered on 20th June 2025 in Nairobi CMELRC No. E286 of 2024. To temper justice with mercy, the appellant, having resigned due to illness, I make no order as to costs in the appeal. 7. The file is marked as closed. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 3RD DAY OF JULY, 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Appellant - Ms Kamau holding Onenga Respondent - Bisher