Moraa v Gyto Security Ltd (Employment and Labour Relations Appeal E087 of 2025) [2026] KEELRC 2381 (KLR) (7 August 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT MOMBASA** **ELRC APPEAL NO. E087 OF 2025** **MOULINE MORAA…………………………………………………………….……APPELLANT** **VS** **GYTO SECURITY LTD………………………………………………………….RESPONDENT** **JUDGMENT** A. INTRODUCTION 1. This is a first appeal from the judgment of the Chief Magistrate's Court at Mombasa (Hon.R. N. Akee, SRM) delivered on 11th November 2024 in CMELRC Cause No. 2 of 2022, in which the trial court found that the Appellant's employment had been unfairly terminated by the Respondent and awarded her compensation for unfair termination and underpayment, while declining the balance of the reliefs sought. Being aggrieved, the Appellant lodged a Memorandum of Appeal dated 21st May 2025, and the Record of Appeal was filed on 9th September 2025. 2. The appeal is not opposed, in the sense that the Respondent was served with the Notice of Address of Service and the Record of Appeal, but has, consistently with its conduct at trial, filed no submissions in this appeal. The appeal has accordingly been determined on the strength of the record and the Appellant's written submissions dated 23rd February 2026, together with the three authorities relied upon. B. BACKGROUND: THE CASE BEFORE THE TRIAL COURT 1. The Appellant commenced the suit before the trial court by a Memorandum of Claim dated 28th December 2021, supported by a witness statement of even date, and a list of documents comprising a demand letter dated 16th February 2021, copies of her bank statements, and a legal notice on the applicable minimum wage. She pleaded that she was employed by the Respondent as a day/security guard from 1st May 2015 until 1st June 2020, earning a monthly salary of Kshs. 7,467/- at the time her employment ended; that on 1st June 2020 she reported to her usual work station only to find guards from Lavington Security Company taking over her assignment; that her supervisors confirmed that the Respondent's contract with its client had ended and that there was no longer work for her; and that she was never thereafter engaged, paid terminal dues, or otherwise communicated with, despite a demand for payment. She sought a declaration that her termination was unfair and unlawful, together with compensation for unfair termination, house allowance, notice pay, public holiday pay, leave pay, underpayment of wages below the statutory minimum, a certificate of service, and costs, totalling Kshs. 368,041/-. 2. The Respondent entered appearance and filed a Memorandum of Reply and Counterclaim dated 31st October 2022, admitting the fact and duration of the Appellant's employment and her monthly salary of Kshs. 7,467/-, but denying that she was summarily dismissed. Its case was that its security contract with its client at the Coast region ended abruptly on 1st June 2020, necessitating the hand-over of duties to another security firm and the redeployment of all affected guards, including the Appellant, to its regional office; that the Appellant failed to report for redeployment and became unreachable; and that she was, after seven days of unexplained absence, declared a deserter by an internal memorandum dated 8th June 2020. On this basis, the Respondent pleaded that the Appellant was not entitled to notice or notice pay, that she had been paid an all-inclusive salary covering house allowance, that no leave was outstanding, and that no underpayment had occurred, her salary having at all times exceeded the applicable minimum wage. The Respondent counterclaimed for Kshs. 13,000/as a month's salary in lieu of notice said to be owed to it by the Appellant on account of her own desertion, and for the return of, or payment for, two sets of uniform valued at Kshs. 4,000/-. 1. The proceedings thereafter suffered repeated adjournments occasioned principally by the Respondent's non-appearance, spanning mentions on 24th November 2022, 23rd February 2023, 13th April 2023, 20th June 2023, 10th August 2023, 13th February 2024 and 14th March 2024. The matter eventually proceeded to hearing on 11th July 2024, at which the Appellant testified, adopted her witness statement as her evidence-in-chief, produced her three listed documents as exhibits, and closed her case; the Respondent did not attend, and its case was accordingly closed without any evidence being led in support of either its defence or its counterclaim. The parties, through the Appellant's counsel alone, thereafter filed written submissions dated 1st August 2024, following which judgment was reserved and ultimately delivered on 11th November 2024. C. THE IMPUGNED JUDGMENT 6. The entirety of the trial court's reasoning is contained in two pages. Having recorded that the Respondent had failed to attend court and that its case had accordingly been closed, the learned trial magistrate directed herself, correctly, to section 47 of the Employment Act, 2007, which places the burden of proving that a termination was fair squarely on the employer, and cited Jane Samba Mukala v Ol Tukai Lodge Limited, Industrial Cause No. 823 of 2021, for the proposition that an employer bears the burden of justifying the reason for termination. She then recorded, in a single paragraph, that “the employee alleges that her termination was unfair and that the respondent did follow the required procedure,” before proceeding, without further elaboration, to enter judgment for the Appellant. The operative part of the judgment reads: “Compensation for unfair termination I award the same at (7,467×6) = Kshs.4,4,802 and underpayment, the statutory amount proposed is Kshs. (13,572-7,467) = Kshs. (6105×24 months) = Kshs. 146,520/=. All the other claims fail as they were not proved. Judgment is there entered as above stated. Costs of the suit and the interest from date of institution.” A subsequent decree, drawn up by the Appellant's advocates and endorsed by the trial court on 2nd September 2025, records a formal declaration that the Appellant was unfairly terminated, and confirms that the claims for house allowance, notice pay, public holiday pay and leave pay were dismissed as “not proved.” D. GROUNDS OF APPEAL 7. The Appellant, dissatisfied with the above judgment, raises eight grounds of appeal, which may fairly be summarised as follows: (i) that the trial court erred in basing its computation of compensation for unfair termination on the actual salary paid rather than the applicable statutory minimum wage, in disregard of the Regulation of Wages Order; (ii) that the award of six months' compensation was inordinately low given the Appellant's five years of diligent service; (iii) that the trial court erred in stating that the Appellant alleged the Respondent had followed the required procedure, when the record shows the contrary; (iv) that the trial court erred in failing to award one month's salary in lieu of notice, despite the finding of unfair termination; (v) that the trial court erred in holding that house allowance was not proved, when the burden lay on the Respondent to prove that it was paid; (vi) that the trial court erred in declining to award unpaid and unissued leave; (vii) that the trial court erred in failing to award unpaid public holidays; and (viii) that the trial court erred in failing to direct the Respondent to issue a certificate of service. E. THE DUTY OF THIS COURT AS A FIRST APPELLATE COURT 8. This being a first appeal, this Court is enjoined by section 78 of the Civil Procedure Act, Cap 21, to re-evaluate, reassess and re-analyse the extracts of the record and to draw its own independent conclusions, bearing always in mind that it neither saw nor heard the witnesses testify, and according such allowance. This duty was authoritatively restated by the Court of Appeal for Eastern Africa in Selle v Associated Motor Boat Co. Ltd [1968] EA 123, and more recently by the Court of Appeal in Peter M. Kariuki v Attorney General [2014] eKLR, relied upon by the Appellant, where the Court held that it is “duty bound... to reconsider the evidence adduced before the trial court and re-evaluate it to draw our own independent conclusions and to satisfy ourselves that the conclusions reached by the Trial Judge are consistent with the evidence.” It is with this mandate in mind that the Court now turns to the record. F. A PRELIMINARY OBSERVATION: THE FORM OF THE TRIAL COURT'S JUDGMENT 1. Before turning to the merits, it is necessary to record a concern that arises from the face of the impugned judgment itself, though, for reasons that will become apparent, it is not dispositive of this appeal. It is sometimes supposed that where a defendant fails to prosecute its defence at trial, a court is at liberty to dispose of the matter summarily and without the same rigour of reasoning that a fully contested suit would demand. That supposition is mistaken, and it is important to say so plainly. 2. Order 21 Rule 4 of the Civil Procedure Rules, 2010, which applies to proceedings of this nature to the extent not inconsistent with the Employment and Labour Relations Court Act, 2011 and the Rules made thereunder, provides that a judgment in a defended suit “shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision.” It is worth emphasising that the present suit was, in the relevant sense, a defended one: the Respondent had filed a Memorandum of Reply and a Counterclaim setting out a positive case of desertion, an all-inclusive salary, and full discharge of leave entitlements. That the Respondent subsequently failed to attend the hearing and prosecute that defence with evidence goes to the sufficiency and weight of the evidence before the court, not to the character of the suit as a defended one. The obligation to render a reasoned judgment containing a concise statement of the case, the issues arising, the court's findings on each, and the reasons supporting those findings, therefore applied in full measure, and did not evaporate merely because the Respondent ultimately failed to appear and adduce evidence. The Court of Appeal made this point emphatically in Mbaki & 2 Others v Macharia & Another [2005] 2 EA 206, holding that a trial court has a positive duty to evaluate the evidence on record, however that evidence comes to stand (whether contested, uncontested, or led by way of formal proof), and to give reasons demonstrating that such evaluation in fact occurred; a bare recitation of a conclusion, without more, amounts to an abdication of that judicial duty. 3. Measured against this standard, the impugned judgment falls short in several material respects. It contains no statement of the issues framed for determination. It does not individually address the pleaded reliefs of house allowance, notice pay, leave pay and public holiday pay, disposing of all four in the single, conclusory sentence that they “fail as they were not proved,” without identifying what evidence was considered, what was found wanting, or by what standard of proof each claim was measured. It does not explain the statutory basis, or the source, of the figure of Kshs. 13,572/- adopted as “the statutory amount” for purposes of the underpayment claim, notwithstanding that this figure rested on a specific gazetted legal notice placed in evidence. It does not engage, even in passing, with sections 35 and 36 of the Employment Act, 2007 in disposing of the claim for notice pay, nor with the factors ordinarily relevant to the exercise of the discretion under section 49(4) of the Act in settling on six months as the appropriate period of compensation. It is entirely silent on the disposal of the Respondent's own counterclaim, which simply disappears from the judgment without comment. And, as ground (iii) of the appeal correctly identifies, the judgment's single sentence purporting to record the Appellant's case — that she “alleges that her termination was unfair and that the respondent did follow the required procedure” — is, read in the context of a judgment that goes on to find in her favour and award compensation for unfair termination, incoherent on its face; it is difficult to escape the conclusion that this was, at best, an unfortunate transcription error (the word “not” having evidently been omitted), and at worst a sign that the evidence was not engaged with the care the exercise demanded. Finally, the formal declaration that the termination was unfair, which the decree records as having been made, is nowhere pronounced in the body of the judgment itself; it appears to have been settled after the fact by the drawing advocate and simply endorsed, rather than adjudged, by the trial court. 4. These are real and legitimate criticisms, and they bear repeating for the guidance of subordinate courts generally: the brevity that non-attendance by one party may excuse in the marshalling of contested evidence is no licence to dispense with the structure, discipline and transparency of reasoning that a judgment, in form and substance, must exhibit. That said, this Court declines to remit the matter for a fresh judgment on this account alone. To do so would serve no useful purpose. This is a first appeal, this Court is under a positive duty to re-evaluate the whole of the evidence and reach its own conclusions, the record is complete and, in material part, uncontroverted (the Respondent having led no evidence at trial), and a remittal would only visit further delay and expense on an Appellant who has, by the date of this judgment, waited some six years for the resolution of her claim — an outcome inconsistent with the constitutional command, under Article 159(2)(b) and (d) of the Constitution, that justice be administered without undue regard to procedural technicalities and without unreasonable delay. The appropriate course, and the one this Court now takes, is to correct the deficiencies identified above by undertaking, itself, the reasoned re-evaluation the trial court ought to have undertaken. G. ISSUES FOR DETERMINATION 13. Arising from the grounds of appeal and the record, the following issues fall for determination: (a) whether the finding that the Appellant's termination was unfair is sustainable on re-evaluation of the record; (b) whether the Appellant was entitled to notice pay; (c) whether the Appellant was underpaid, and if so, on what statutory basis and to what extent; (d) whether compensation for unfair termination ought to have been computed on the statutory minimum wage rather than the wage actually paid, and if so, the resulting award; (e) whether the Appellant proved her claim for house allowance; (f) whether the Appellant proved her claims for leave pay and public holiday pay; and (g) whether the Appellant is entitled to a certificate of service, and what order as to costs should follow. H. ANALYSIS AND DETERMINATION (a) Whether the termination was unfair, and at whose initiative 1. On independent re-evaluation, the evidence on record fully sustains a finding that the Appellant's termination was both substantively and procedurally unfair. Sections 43, 45(1) and 47(5) of the Employment Act, 2007 place the burden of proving the reason for termination, and the fairness of that reason, squarely on the employer; where the employer fails to discharge that burden, the termination is deemed unfair. Here, the Respondent's pleaded case was that the Appellant deserted her duty within the meaning of section 44(4)(a) of the Act. That is a case the Respondent was obliged to prove, not merely to plead. Having failed to attend the hearing, called no witness, and led no evidence — neither the internal memoranda declaring the Appellant a deserter, nor the “minutes of a disciplinary hearing” referred to in its own list of documents but never produced — the Respondent's version of events was never placed before the trial court as evidence at all, and cannot now be treated as proved. What stands unchallenged is the Appellant's own testimony: that she reported for duty as usual, that she was displaced by an incoming security firm without any prior notice to her, that her supervisors confirmed the contract had lapsed, and that she was thereafter simply left without engagement, without any invitation to a hearing, and without any communication of a decision to terminate her services, still less the reasons for it. 2. It also bears emphasis that, even taking the Respondent's own unproved account at its highest, the termination was plainly one taken at the Respondent's own initiative. The internal memorandum of 8th June 2020 declaring the Appellant a deserter was addressed by the Respondent's staffing officer to its own head of operations; it was never shown to have been communicated to the Appellant at all, still less accompanied by any invitation to explain her side or to attend a disciplinary hearing as sections 41 and 45(2) of the Employment Act require before an employer may lawfully terminate on grounds of misconduct. An employer's unilateral internal decision to treat an employee as having deserted, arrived at without any attempt to engage the employee in the manner the Act prescribes, is itself an act of termination by the employer, not a resignation or abandonment by the employee. The finding that this was a termination at the initiative of the Respondent, and that it was unfair both substantively and procedurally, is accordingly affirmed. (b) Notice pay 16. Ground (iv) succeeds. Sections 35 and 36 of the Employment Act, 2007 entitle an employee engaged on monthly terms, as the Appellant was, to not less than twenty-eight days' notice of termination or one month's wages in lieu thereof, save where summary dismissal is justified under section 44. Having found, as above, that the purported summary termination was neither substantively nor procedurally justified, it follows inexorably that the Appellant was entitled to notice, or to payment in lieu of notice, which she was never given. The trial court, having itself found that the termination was unfair, fell into error in failing to make any award under this head at all; the omission cannot be reconciled with its own finding. The Appellant is awarded Kshs. 13,572, being one month's salary in lieu of notice, as pleaded. (c) Underpayment: section 48 of the Labour Institutions Act and the applicable minimum wage 1. Ground (i), in its underlying premise, and the trial court's own (if sparingly reasoned) finding on underpayment, are affirmed, for the following reasons. Minimum wages in Kenya are prescribed through Regulation of Wages Orders made under Part VII of the Labour Institutions Act, 2007, which periodically fix, by gazetted legal notice, the lowest lawful remuneration payable to employees in defined occupational categories and geographical areas — historically reviewed and announced around Labour Day of each year. Rates are ordinarily set by reference to two variables: the area of employment, with the cities of Nairobi, Mombasa and Kisumu forming the highest wage band, other municipalities an intermediate band, and other areas the lowest; and the occupational grade, general labourers, cleaners, messengers and night watchmen or security guards each attracting their own prescribed rate. Section 48 of the Labour Institutions Act, 2007 gives practical effect to these protections: it renders void any term of a contract of employment purporting to pay an employee less than the minimum wage applicable to that employee's occupation and area, and confers on the employee a direct statutory entitlement to recover, as a civil debt, the shortfall between what was actually paid and what the law required to be paid, notwithstanding any contrary term of the contract of employment. It is, in substance, a remedy distinct from and additional to a common-law claim for unpaid wages, precisely because it does not depend on what the parties agreed, but on what the law independently mandated. 2. Applying this framework to the present case, the Appellant produced before the trial court, as an exhibit, a legal notice specifying the applicable statutory minimum wage, which the trial court adopted, without objection, at Kshs. 13,572/- per month for the relevant period and category. The Respondent, having led no evidence at trial and having made no submissions either at trial or on this appeal, has at no stage challenged this figure, its source, or its applicability to the Appellant's occupation as a security guard employed within the City of Mombasa throughout her tenure — a category and area combination that, consistently with the wage bands described above, attracts the higher urban rate. Having regard to the unrebutted documentary evidence properly before the trial court, this Court finds, as did the trial court, that the Appellant was at all material times paid below the statutory minimum wage applicable to her, and that she is entitled to recover the resulting underpayment. The computation adopted by the trial court — a monthly shortfall of Kshs. 6,105/- (Kshs. 13,572/- less Kshs. 7,467/-), applied over the twenty-four months immediately preceding termination as pleaded, yielding Kshs. 146,520/- — is arithmetically sound and is not disturbed. (d) Compensation for unfair termination: re-computation on the minimum wage 1. This finding of underpayment has a direct bearing on the proper computation of compensation for unfair termination under section 49(1)(c) of the Employment Act, 2007. That provision anchors compensation to the employee's wage; but where, as here, the wage actually paid was itself the product of a continuing statutory violation — payment below the lawfully prescribed minimum — it cannot be right to compute a remedy for the employer's wrongdoing (unfair termination) by reference to a wage figure that itself reflects the employer's other, distinct wrongdoing (unlawful underpayment). To do so would permit the Respondent to derive a benefit, in the form of a depressed compensation award, from its own continuing breach of the Regulation of Wages Order, a result offensive to ordinary principles that a wrongdoer ought not to profit from its own wrong, and one this Court is not prepared to countenance. Ground (i) accordingly succeeds to this extent: compensation for unfair termination must be computed on the statutory minimum wage of Kshs. 13,572/rather than the Kshs. 7,467/- actually (and unlawfully) paid. 2. As to the number of months, the trial court exercised its discretion under section 49(1)(c) and (4) of the Act to award the equivalent of six months' salary. Ground (ii) asks this Court to increase this to the maximum of twelve months, citing the Appellant's five years of service and unblemished record. While the trial court's reasoning on this point, as on others, was regrettably terse, this Court is not persuaded that six months represents a plain error of principle warranting further appellate interference, particularly once the wage base is corrected as above: the resulting award of Kshs. 81,432/- (Kshs. 13,572/- × 6) represents an increase of some 82 per cent over the trial court's original award of Kshs. 44,802/-, and substantially addresses the real mischief of which the Appellant complains, namely, that the award was computed on a suppressed wage. In the absence of any evidence of particularly egregious conduct on the Respondent's part beyond the failure of procedure and proof already found against it, and mindful that this is a discretion the trial court, having received the Appellant's oral testimony, was better placed to exercise in the first instance, this Court declines to extend the multiplier further. The Appellant is accordingly awarded Kshs. 81,432/- as compensation for unfair termination. (e) House allowance 1. Ground (v) succeeds, and this Court agrees with the Appellant's submissions on this point. Section 31(1) of the Employment Act, 2007 obliges an employer to provide reasonable housing to each employee, or to pay a sufficient sum as will enable the employee to obtain such accommodation, in addition to wages. Section 31(2) excuses the employer from this obligation only where the contract of employment expressly consolidates a housing component within the basic wage, or where a collective agreement so provides. Section 10(7) of the Act places the burden of proving or disproving an alleged term of employment on the employer where it fails to produce a written contract or the particulars prescribed under section 10(1); here, the Respondent produced no written contract of employment at all, still less one demonstrating that the Appellant's consolidated salary was intended to, or did, include a housing component. The bare assertion in the Respondent's pleadings that the salary was “all-inclusive” cannot, without more, discharge that burden, particularly where, as here, no evidence of any kind was led to substantiate it. The evidential vacuum created by the Respondent's own failure of proof must accordingly be resolved in the Appellant's favour. Adopting the rate of fifteen per centum of monthly salary applied in Grain Pro Kenya Inc. Ltd v Andrew Waithaka Kiragu [2019] eKLR as a reasonable proportion of salary an employee ordinarily expends on rent, and applying it, consistently with the Appellant's own pleaded computation, to the actual monthly salary of Kshs. 7,467/- over the sixty months of her service, the Appellant is awarded house allowance of Kshs. 67,203/- (15% × 7,467 × 60). (f) Leave pay and public holiday pay 2. Grounds (vi) and (vii) do not succeed, and the dismissal of these two claims by the trial court is upheld, though not for the reasons — or rather, the absence of reasons — the trial court gave. It is trite that a court owes a losing party, at a minimum, an explanation for the rejection of a claim; “all the other claims fail as they were not proved” explains nothing, and this Court does not endorse that mode of disposal. This Court's own re-evaluation, however, independently satisfies it that these two claims, as pleaded and testified to, were not proved to the standard the law requires. Unlike the underpayment claim, which rested on an objective, externally verifiable, gazetted figure requiring nothing more than simple arithmetic to apply, the claims for leave and public holiday pay were advanced in the barest possible terms — a single-sentence assertion in the witness statement that the Appellant never went on leave and worked on unspecified public holidays across five years of service, without particulars of which leave cycles were affected, which specific holidays were worked in which years, or the rate at which such work is said to attract compensation. A claim of this character is properly regarded as one for special damages, which this Court, consistently with the Court of Appeal's holding in Hahn v Singh [1985] KLR 716, treats as requiring not merely pleading but strict and specific proof. While it is correct, as a general proposition, that section 74 of the Employment Act casts upon the employer the burden of maintaining and producing leave and attendance records, that burden is only engaged once the employee has, at least in outline, particularised the claim sufficiently to put the employer to an answer; a wholly unparticularised assertion of a continuing entitlement accumulated over half a decade does not, without more, suffice to shift that evidential burden. These claims accordingly fail, not because the Respondent proved payment, but because the Appellant did not lay a sufficient evidential foundation for the amounts claimed. (g) Certificate of service and the Respondent's counterclaim 23. Ground (viii) succeeds. Section 51 of the Employment Act, 2007 entitles an employee, on request, to a certificate of service upon termination of employment, as a matter of course and independently of any finding on the fairness of the termination. There was no dispute that the Appellant's employment ended, and no reason, still less one articulated by the trial court, why this ordinarily uncontroversial relief should have been withheld. The Respondent shall issue the Appellant with a certificate of service within thirty (30) days of this judgment. 24. For completeness, and to avoid any future satellite dispute, the Court notes that the Respondent's counterclaim for Kshs. 13,000/- in lieu of notice and Kshs. 4,000/- for uniforms, having been wholly unsupported by any evidence at trial in circumstances where the Respondent bore the burden of proving it, necessarily fails and is dismissed, notwithstanding the trial court's silence on the point. I. DISPOSITION 25. For the foregoing reasons, this appeal succeeds in part. The judgment and decree of the trial court dated 11th November 2024 are set aside only to the extent set out below, and substituted with the following orders: (a) THAT it is declared that the Appellant's employment was terminated by the Respondent, at its own initiative, unfairly, both substantively and procedurally. (b) THAT the Respondent shall pay to the Appellant the following sums: Compensation for unfair termination (13,572 × 6 months) Kshs. 81,432.00 Underpayment (13,572 - 7,467 = 6,105 × 24 months) Kshs. 146,520.00 One month's salary in lieu of notice Kshs. 13,572 House allowance (15% × 7,467 × 60 months) Kshs. 67,203.00 TOTAL Kshs. 308,727.00 1. THAT the claims for leave pay and public holiday pay were not proved and are dismissed, as found by the trial court. 2. THAT the Respondent's counterclaim, having been unproved, is dismissed. 3. THAT the Respondent shall, within thirty (30) days of this judgment, issue the Appellant with a certificate of service. 4. THAT the sum of Kshs. 308,727/- shall attract interest at court rates from the date of the lower court judgment, until payment in full. 5. THAT the costs of the suit before the trial court, as already ordered, are not disturbed.(h) THAT, the appeal having succeeded only in part, the Appellant shall have forty per centum (40%) of the costs of this appeal, to be borne by the Respondent. 26. Orders accordingly. DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS/ELECTRONICALLY AT MOMBASA THIS 7th DAY OF AUGUST 2026. OCHARO KEBIRA JUDGE