Musyoki v Atisco Security Company Ltd (Cause E570 of 2024) [2026] KEMC 445 (KLR) (30 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT MOMBASA** **MAGISTRATES COURT CIVIL** **MCELRC CAUSE NO. E570 OF 2024** **FRANCIS MUISYO MUSYOKI...……….….……...………………………….…CLAIMANT** **VERSUS** **ATISCO SECURITY COMPANY LIMITED…………………….…………….RESPONDENT** **JUDGEMENT** **Introduction** 1. The Claimant instituted this suit by a Memorandum of Claim dated 3rd September 2024 seeking various employment-related remedies arising from the cessation of his employment with the Respondent. He contends that he voluntarily resigned from employment on medical grounds after serving the Respondent from 1st December 2019 to 8th November 2023 but that the Respondent failed to compute and pay his terminal dues. He consequently seeks payment of underpayments, house allowance, accrued leave, service pay, damages for alleged unfair labour practices, issuance of a Certificate of Service together with costs and interest. 2. The Respondent filed its Response to the Memorandum of Claim denying liability. While admitting the existence of an employment relationship, it disputes the circumstances under which the employment came to an end. According to the Respondent, the Claimant never resigned but instead deserted his employment on 8th November 2023 by abandoning his workstation without notice or communication. The Respondent further contends that the Claimant was paid all lawful dues, took his annual leave, was not entitled to service pay by virtue of his pension membership and that the remaining claims are either unproved or statute barred. 3. The matter proceeded to full hearing on 24th June 2025. The Claimant testified on his own behalf while the Respondent called one witness, Calvins Owiyo, its Manager. Both parties thereafter filed written submissions which the Court has carefully considered alongside the pleadings, documentary evidence and applicable law. **The Claim** 1. The Claimant states that he was employed by the Respondent as a night security guard on 1st December 2019 and continuously served until 8th November 2023. His evidence is that he earned a monthly salary of Kshs.7,000 and worked from 6.00 p.m. to 6.00 a.m. 2. According to the Claimant, he developed medical complications affecting his eyes and legs which rendered him incapable of continuing with his employment. Consequently, on 8th November 2023, he prepared and delivered a resignation letter to the Respondent. He testified that upon failing to find management at the Respondent's offices, he left the letter with the security guard stationed there before telephoning the manager to notify him of the resignation. 3. The Claimant further testified that despite repeated visits to the Respondent's offices requesting computation of his terminal dues, the Respondent declined to settle his entitlements. 4. His claim comprises: Underpayments; House allowance; Payment in lieu of accrued annual leave; Service pay; Damages for alleged unfair labour practices; Certificate of Service; Costs and interest. He produced, among other documents: his resignation letter dated 8th November 2023; a medical report; M-Pesa statements; demand letter; email forwarding the demand letter. 5. During cross-examination, the Claimant admitted that he had no documentary acknowledgment of receipt of his resignation letter by the Respondent. He also admitted dissatisfaction with the Respondent's designated medical facility, Crystal Medical Centre, and conceded that portions of the medical report contained handwritten alterations. **The Defence** 1. The Respondent admits employing the Claimant from 1st December 2019 but disputes virtually every other allegation forming the basis of the claim. Its case is that: the Claimant signed a written employment contract; his salary was contractually agreed; the salary reflected the Respondent's contract with Tradecon Limited; employees were facilitated through Crystal Medical Centre whenever medical treatment became necessary; the Claimant never reported any illness through that process. 2. The Respondent's witness, Calvins Owiyo, testified that on 8th November 2023, the Claimant simply disappeared from his workstation without notifying anyone. Several months later, the Respondent allegedly learnt of the Claimant's whereabouts only after receiving a demand letter from his advocates. 3. The Respondent therefore maintains that: there was no resignation; the Claimant deserted employment; he cannot benefit from his own misconduct; his claims lack both factual and legal foundation. The Respondent further states that: the Claimant enjoyed annual leave; no separate house allowance formed part of the contractual package; service pay is unavailable because the Claimant belonged to a pension arrangement; the claims for leave and house allowance are statute barred. The Respondent consequently prays that the entire claim be dismissed with costs. **Evidence** Claimant's Evidence 1. The Claimant adopted his witness statement and documents as his evidence in chief. He reiterated that: he faithfully served the Respondent for almost four years; he resigned solely because of deteriorating health; he personally delivered the resignation letter; he informed management through a telephone call; despite repeated follow-ups, no dues were paid. During cross-examination, he maintained that he had indeed resigned but admitted: no acknowledgment stamp appears on the resignation letter; he did not personally hand the letter to management; no independent witness was called to prove delivery; portions of the medical report had handwritten amendments. Respondent's Evidence 1. RW1, Calvins Owiyo, adopted his witness statement. He maintained that: the Respondent never received any resignation letter; all resignation letters are ordinarily acknowledged and filed; no such record exists; the Claimant simply abandoned duty. RW1 further testified that: Crystal Medical Centre had been designated to attend employees; the Claimant never reported illness through that arrangement; attendance registers demonstrated that annual leave had been taken; employees worked under contractual terms which did not provide a separate house allowance. 2. Under cross-examination, RW1 admitted there was no documentary evidence demonstrating that the Crystal Medical Centre memorandum had actually reached the Claimant. He also admitted there was no specific leave record produced for the year 2023. **Issues for determination** 1. Having considered the pleadings, oral evidence, documentary exhibits and submissions by both parties, the Court is of the respectful view that the following issues arise for determination: 2. Whether the Claimant voluntarily resigned from employment or deserted duty. 3. Whether the Claimant is entitled to the reliefs sought; 4. Who should bear the costs of the suit. **Analysis** Whether the Claimant voluntarily resigned or deserted employment 1. This is the central issue upon which the determination of the entire suit turns. Whereas the Claimant maintains that he voluntarily resigned on medical grounds, the Respondent insists that he deserted duty and only resurfaced several months later through his advocates' demand letter. 2. The burden of proving resignation rests upon the Claimant. Sections 107 and 109 of the Evidence Act require the party asserting the existence of a fact to prove it. Since the Claimant alleges that the employment relationship came to an end through resignation, it was incumbent upon him to demonstrate, on a balance of probabilities, that a valid resignation was communicated to and received by the employer. 3. The Claimant relies principally upon a handwritten resignation letter dated 8th November 2023. According to his testimony, he proceeded to the Respondent's office but did not find management. He therefore handed the letter to the security guard stationed at the premises before telephoning the manager to inform him of the resignation. The Court has carefully considered this evidence. 4. Significantly, the resignation letter bears no acknowledgment stamp, signature or endorsement showing that it was received by the Respondent. The Claimant equally did not call the security guard who allegedly received the letter nor produce any telephone records demonstrating that he communicated the resignation to the manager. 5. While it is true that resignation need not necessarily be communicated through any prescribed format, the employee bears the evidential burden of proving that the communication reached the employer. Mere production of an unsigned handwritten letter does not, without more, establish delivery. 6. The Respondent's evidence, on the other hand, is that all resignation letters are formally acknowledged and retained in employee records. RW1 maintained throughout both the pleadings and oral testimony that no resignation letter was ever received. 7. The Court notes an apparent inconsistency in the Respondent's pleadings. In its Statement of Response, the Respondent pleaded that the Claimant "voluntarily terminated his services." During hearing and in the written submissions, however, the Respondent maintained that there was never any resignation and that the Claimant deserted employment. 8. The Court does not consider this pleading fatal to the Respondent's case. Pleadings must be read holistically and together with the evidence adduced at trial. It is evident from the witness statement, oral testimony and submissions that the Respondent's consistent factual position was that the Claimant abandoned his employment rather than formally resigning. 9. Nevertheless, the Court must independently evaluate whether desertion has itself been proved. 10. Desertion is not established merely because an employee ceases reporting to work. It requires proof that the employee deliberately abandoned employment with no intention of returning. 11. The Respondent relies on Boniface Nkubi Karagania v Protective Custody Limited [2019] eKLR, where the Court observed that desertion necessarily entails an intention not to return to work and that such intention cannot simply be presumed but must be established by clear evidence. The authority was properly relied upon by the Respondent and accurately states the law. 12. Likewise, in Central Furniture Shop Limited v Mohamed [2025] KEELRC 199 (KLR), also relied upon by the Respondent, the Court reiterated that where desertion is alleged, the surrounding circumstances must demonstrate abandonment of employment. The decision equally recognised that the burden lies on the employer to establish the alleged desertion before disciplinary consequences can properly arise. 13. Applying those principles, the Respondent demonstrated that the Claimant stopped reporting to work from 8th November 2023. However, no evidence was produced showing that any efforts were made thereafter to contact him. No demand to resume duty was produced. No show-cause letter was issued. No notice requiring explanation of absence was exhibited. No evidence was produced of any disciplinary proceedings under section 41 of the Employment Act. 14. The Court appreciates that an employer may be unable to immediately trace an employee who absconds duty. Nevertheless, before concluding that an employee has deserted employment, reasonable attempts to contact the employee ought ordinarily to be demonstrated. 15. The Respondent admitted during cross-examination that there was no documentary evidence showing communication to the Claimant after the alleged desertion. 16. Consequently, while the Court is not entirely persuaded that the Claimant has satisfactorily proved formal resignation through proper communication of the resignation letter, it is equally unable to conclude that the Respondent fully established desertion within the legal standard set out in the authorities cited. 17. The Court therefore finds that the evidence concerning the manner in which the employment relationship came to an end is inconclusive. What is however undisputed is that the employment relationship ceased on or about 8th November 2023, and that the cessation did not arise through dismissal initiated by the Respondent. 18. This finding substantially affects the claim for damages founded upon alleged unfair labour practices and unlawful withholding of terminal dues. The Medical Report 1. The Claimant relies on a medical report indicating ailments affecting his eyes and legs as the reason for leaving employment. The Respondent questioned the authenticity of the report because: certain portions contain handwritten amendments; the age appears altered; employment particulars appear handwritten; reference is allegedly made to another employer. 2. The Court has examined the document. Although the handwritten alterations diminish the evidential weight of the report, the Respondent did not call any witness from the hospital nor tender expert evidence challenging its authenticity. The Court is therefore unable to hold that the report is fraudulent merely because alterations appear on its face. 3. At the same time, the report alone cannot prove that the Respondent received or accepted a resignation founded upon medical incapacity. Accordingly, the medical report establishes only that the Claimant sought medical attention around the relevant period. It does not establish communication of resignation nor impose liability upon the Respondent. Credibility of the Witnesses 1. The Court found both witnesses generally candid. The Claimant remained consistent that he left employment because of illness. However, his evidence regarding delivery of the resignation letter remained unsupported by independent evidence. 2. Similarly, RW1 consistently maintained that no resignation was received and that the Claimant deserted duty. However, the Respondent equally failed to demonstrate what action was taken immediately after the alleged desertion. The shortcomings in each party's evidence ultimately leave neither version wholly proved. Whether the Claimant is Entitled to the Reliefs Sought 1. Having found that the cessation of the employment relationship was not proved to have resulted from termination by the Respondent, the Court now proceeds to consider each of the remedies sought. Underpayments 1. The Claimant pleaded and testified that throughout his employment he earned a monthly salary of Kshs.7,000, which was substantially below the statutory minimum wage prescribed for a night watchman under the Regulation of Wages (General) Orders. 2. According to the Claimant, between December 2019 and April 2022, the prescribed minimum wage was Kshs.15,141.95, while from May 2022 the applicable minimum wage increased to Kshs.16,959.00. He therefore claims the difference as underpayments. 3. The Respondent does not dispute that the Claimant earned Kshs.7,000 per month. Its defence is that the salary was mutually agreed upon in the written contract of employment and reflected the value of its security contract with Tradecon Limited, whose monthly contract value was Kshs.11,000. 4. The Respondent further submits that the Court should uphold the parties' contractual bargain, relying on National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR, where the Court of Appeal held that courts should not rewrite contracts voluntarily entered into by parties. 5. The authority relied upon by the Respondent correctly states the general principle that courts ought not to interfere with freely negotiated contracts. However, employment contracts occupy a special statutory position. The Employment Act and the Labour Institutions Act establish minimum standards below which parties cannot lawfully contract. An employee cannot waive statutory protections by accepting remuneration below the minimum wage prescribed by law. 6. Section 48 of the Labour Institutions Act empowers the Cabinet Secretary to prescribe minimum wages through Wage Orders. Those prescribed minimum wages become mandatory terms implied into every employment contract. 7. Consequently, even where an employee willingly signs a contract accepting a lower salary, such agreement cannot override mandatory statutory wage protections. 8. The Respondent's further submission that its profitability and contractual arrangements with Tradecon Limited justified payment of Kshs.7,000 cannot avail it. Commercial convenience cannot justify payment below the statutory minimum wage. 9. An employer who undertakes contractual obligations with third parties must ensure compliance with labour legislation irrespective of the value of the commercial contract. 10. The Respondent did not produce any Wage Order demonstrating that Kshs.7,000 complied with the prescribed minimum wage applicable to a night security guard during the material period. Indeed, its defence rests solely upon contractual agreement rather than statutory compliance. 11. The Court therefore finds that the Claimant has proved, on a balance of probabilities, that he was paid below the applicable statutory minimum wage. December 2019 – April 2022 Applicable minimum wage: Kshs. 15,141.95 Salary paid: Kshs. 7,000.00 Monthly underpayment: Kshs. 15,141.95 − Kshs. 7,000.00 = Kshs. 8,141.95 Period: 1 December 2019 to 30 April 2022 = 29 months Calculation: Kshs. 8,141.95 × 29 = Kshs. 236,116.55 May 2022 – November 2023 Applicable minimum wage: Kshs. 16,959.00 Salary paid: Kshs. 7,000.00 Monthly underpayment: Kshs. 16,959.00 − Kshs. 7,000.00 = Kshs. 9,959.00 Period: 1 May 2022 to 8 November 2023 For purposes of monthly wage computation, the Claimant pleaded the period as 19 months, namely May 2022 through November 2023 inclusive. Calculation: Kshs. 9,959.00 × 19 = Kshs. 189,221.00 **Total Underpayments: 425,337.55** 1. The foregoing computation is based on the figures specifically pleaded by the Claimant and not disputed by way of an alternative statutory computation by the Respondent. It is trite that parties are bound by their pleadings, and in the absence of evidence demonstrating that the applicable statutory minimum wages were different from those pleaded, the Court adopts the Claimant's computation. House Allowance 1. The Claimant seeks separate payment of house allowance on the basis that none was ever paid throughout his employment. The Respondent argues that: the contract did not provide for separate house allowance; employees secured their own accommodation; the claim is statute barred under section 90 of the Employment Act. 2. The Court first considers limitation. Section 90 of the Employment Act provides that employment claims founded on a continuing injury must be instituted within twelve months after cessation of the injury. The Respondent argues that the claim falls outside that period. The Court respectfully disagrees. 3. The employment relationship ended on 8th November 2023. The present suit was filed on 3rd September 2024, which was less than twelve months after cessation of employment. Accordingly, the claim is not defeated by limitation. 4. Turning to the merits, section 31 of the Employment Act obligates every employer either: to provide reasonable housing; or to pay sufficient house allowance as part of the employee's wages. The Respondent did not demonstrate that: housing was provided; or the salary of Kshs.7,000 was expressly consolidated to include house allowance. 5. Although RW1 testified that employees sourced their own accommodation, no contractual provision expressly showed that the salary was inclusive of house allowance. In the absence of such evidence, the Court finds that the Claimant has proved entitlement to house allowance. The claim therefore succeeds. 6. The Court computes the award as follows: Monthly House Allowance: 15% × Kshs.7,000= Kshs.1,050.00 Recoverable period: September 2021 – November 2023= 27 months **27 × Kshs.1,050= Kshs.28,350.00** Accrued Leave 1. The Claimant states that throughout his employment he never proceeded on annual leave and therefore claims payment in lieu thereof. The Respondent disputes the claim and relies upon staff attendance registers, payroll records and its witness testimony to demonstrate that leave was taken. 2. The burden of proving annual leave ordinarily rests upon the employer by virtue of section 74 of the Employment Act, which obligates employers to maintain employment records. 3. The Respondent indeed produced attendance registers. However, those registers principally relate to limited periods and do not comprehensively demonstrate annual leave taken throughout the Claimant's four-year employment. During cross-examination RW1 admitted there was no leave record specifically demonstrating leave for the year 2023. Equally, the Claimant produced no independent evidence demonstrating continuous denial of annual leave throughout his employment. 4. The Court therefore finds that neither party produced complete leave records capable of conclusively resolving the dispute. In such circumstances, the statutory burden placed upon employers to keep leave records assumes significance. Since the Respondent did not produce complete leave records covering the Claimant's entire employment, the uncertainty must operate against it. 5. The Court therefore finds that the Claimant has proved entitlement to payment for outstanding accrued leave to the extent pleaded and proved, subject to verification during computation. However, the claim is recoverable only within the statutory limitation period of three years preceding the institution of the suit. The Court therefore limits the award to leave earned during the recoverable period. Monthly salary: Kshs.7,000.00 Daily rate: Kshs.7,000 ÷ 26= Kshs.269.23 Annual Leave: 21 × Kshs.269.23= Kshs.5,653.83 Recoverable Leave: 2 completed leave years 2 × Kshs.5,653.83= Kshs.11,307.66 Service Pay 1. The Claimant seeks service pay for four completed years of service. The Respondent argues that: the Claimant belonged to a registered pension arrangement; Section 35(6) of the Employment Act bars payment of service pay where an employee is a member of NSSF or another pension scheme. The Court has carefully considered the pleadings. 2. While the Respondent repeatedly asserted that the Claimant belonged to a pension scheme, it produced no NSSF statements, pension membership records or remittance schedules proving that assertion. Mere pleading is not evidence. 3. An employer alleging statutory exclusion from service pay bears the evidential burden of proving that the employee actually belonged to the statutory scheme relied upon. 4. No documentary proof of pension contributions was produced before this Court. Consequently, the Court is unable to conclude that the exclusion under section 35(6) has been established. The claim for service pay therefore succeeds. Computation: Monthly salary: Kshs.7,000.00 Fifteen days' wages: Kshs.3,500.00 Completed years of service: 4 Service Pay: Kshs.3,500 × 4= Kshs.14,000.00 Certificate of Service 1. Section 51 of the Employment Act imposes a mandatory obligation upon every employer to issue a Certificate of Service to an employee upon termination of employment unless specifically exempted by statute. The obligation is mandatory. 2. It is not dependent upon whether termination occurred through resignation, desertion or expiry of contract. The Respondent argued that it could not issue the certificate because the Claimant disappeared. That submission cannot stand. 3. Once the employment relationship came to an end, the employer remained under a statutory duty to prepare and issue the certificate whenever reasonably requested. The Claimant is therefore entitled to a Certificate of Service. Damages for Unfair Labour Practices 1. The Claimant seeks damages equivalent to twelve months' wages for alleged unfair labour practices on the basis that the Respondent unlawfully withheld his terminal dues after his resignation. 2. The Respondent opposes the claim, maintaining that there was neither dismissal nor unfair termination, but rather abandonment of employment by the Claimant. It further submits that, in the absence of termination by the employer, compensation under the Employment Act is unavailable. 3. The Court has carefully considered the evidence and the applicable law. Compensation under section 49 of the Employment Act is ordinarily awarded where an employer has been found to have unfairly terminated an employee's employment contrary to sections 41, 43 and 45 of the Act. 4. In the present case, there is no evidence that the Respondent terminated the Claimant's employment. Equally, the Court has found that the Claimant did not satisfactorily prove that his resignation was formally communicated and accepted by the Respondent. 5. What emerges from the evidence is that the employment relationship simply came to an end on or about 8th November 2023, but neither party has established that the other unlawfully terminated the contract. There is therefore no factual or legal basis upon which the Court can find that the Respondent unfairly terminated the Claimant's employment. 6. The Claimant's grievance principally concerns the Respondent's alleged failure to pay statutory employment benefits rather than an unlawful dismissal. While failure to comply with statutory employment obligations may entitle an employee to recover the unpaid benefits themselves, it does not automatically justify an award of compensation for unfair termination where no termination by the employer has been proved. 7. The Respondent relied upon Kitumu v Simba Apparel EPZ Ltd [2023] KEELRC 1666 (KLR) for the proposition that an employee who abandons employment cannot subsequently claim compensation for unfair termination. Although the factual circumstances of that decision differ from the present case, the principle that compensation under section 49 presupposes termination by the employer is sound and applicable. 8. Accordingly, the prayer for damages for unfair labour practices and compensation equivalent to twelve months' salary is not merited and is declined. **Final Orders** 1. Judgment is therefore entered in favour of the Claimant against the Respondent as follows: 1. Underpayments 425,337.55 2. House Allowance 28,350.00 3. Leave Pay 11,307.66 4. Service Pay 14,000.00 **Total Award 478,995.21** * 1. The prayer for damages for unfair termination and unfair labour practices is declined. 2. The Respondent shall issue the Claimant with a Certificate of Service within thirty (30) days from the date of this Judgment. 3. The monetary awards shall attract interest at court rates from the date of this Judgment until payment in full. 4. The Claimant shall have the costs of the suit. It is so ordered. **DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOSFT TEAMS AT MOMBASA THIS 30TH JULY 2026.** **……………………………………………….** **EMILY M. MWAMUYE** **SENIOR RESIDENT MAGISTRATE**