https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2388

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **APPEAL NO. E056 OF 2022** **PROTEQ-X SECURITY SYSTEMS LIMITED APPELLANT** *VERSUS* **MELZEDECK MOKUA OBURE RESPONDENT** **[Being an appeal from the judgment of Hon. C. K. Cheptoo delivered on 6 May 2022 in Milimani MCELRC No. 2269 of 2019]** **JUDGMENT** The appeal arises from the judgment delivered on 6 May 2022 in Milimani MCELRC No. 2269 of 2019. The appellant seeks that the appeal be allowed, and the judgment of the trial court be set aside with costs. The background to the appeal is a claim filed by the respondent against the appellant, alleging that on 26 October 2018 he was employed by the appellant as a security guard. The claim was that the monthly wage was Ksh. 10,000 below the minimum, working from 6 pm to 6 a.m. from Monday to Saturday without compensation. There was no payment of the house allowance, and he was at work during public holidays. The NSSF contributions for May to August 2019 were not paid. The claim is also that while on duty, the respondent was approached by a driver, George Momanyi, who informed him he had been instructed to take him to a new station in Ruaka. There was no prior information about the transfer from the supervisor, Josephine. The respondent protested the move, noting that it would affect his relocation to the new work site, and that his salary was low. He was then informed his services would not be required. He worked until 11 August 2019 when his employment was terminated by dismissal. He claimed there was wrongful and unfair termination of employment without due process and thus claimed the following: 1. Notice pay Ksh. 16,585.19 2. Damages for wrongful dismissal Ksh. 199,022.28 3. Underpayments Ksh. 48,640.90 4. Unpaid salary for August 2019 Ksh. 7,611.45 5. House allowance for 11 months Ksh. 23,796.14 6. Overtime Ksh. 171,666 7. Rest days for 44 weeks Ksh. 228,888 8. Public holidays Ksh. 12,484.80 9. Certificate of service. 10. Costs of the suit. In response, the respondent admitted that the respondent was employed as a security guard from 26 October 2018 but denied the claims made. The respondent was paid in accordance with the law and did not work overtime. The paid wage was consolidated, including a house allowance, and there was no work on public holidays. The appellant paid contributions to NSSF. The respondent was stationed at SIMCO Plaza and was redeployed to a different station where it was insubordinate and declined to attend, leading to summary dismissal. The response was also that the respondent had several incidents of misconduct: 1. On 29 May 2019, the respondent was given a verbal warning when found sleeping at work. Such conduct placed the appellant's work in jeopardy. 2. On 23 May 2019, the respondent failed to report to work without advice to the supervisor. 3. On 11 August 2019, the respondent was given verbal instructions to report to a workstation but declined. 4. From 11 August 2019, the respondent did not report to work, leading to loss of clients and complaints. 5. The appellant declared the respondent a deserter on 19 August 2019. Contrary to the respondent's allegations, security guards in Ruaka are provided with transport. The respondent refused to follow lawful instructions from his superiors, George Momanyi and Josephine, thereby insubordinating himself. It was unreasonable for the claimant to demand the allocation of duties near his home rather than in Ruaka, where work was available. The claims thus made lack merit and should be dismissed with costs. The learned magistrate heard the parties and held that there was no due process in the termination of the respondent’s employment and thus made the following awards: 1. Underpayment Ksh. 35,730. 2. Unpaid salary for August 2019 Ksh. 7.184.10 3. Overtime Ksh. 93,636. 4. Public holidays Ksh. 2,080. 5. Certificate of service. 6. Costs and interest. Aggrieved by the judgment, the appellant filed the appeal on grounds that the learned magistrate erred in law and fact in making an award of Ksh. 138,630 contrary to the pleadings and evidence. The trial court failed to appreciate that the respondent absconded from duty and had not proved his case; hence, he was not entitled to the reliefs sought. The findings by the trial court are unsupported and should be set aside and the claims dismissed with costs. On appeal, the appellant submitted that the respondent filed his claim before the trial court, alleging that his employment had been unlawfully terminated, which was incorrect, as he had deserted duty. He claimed underpayments, unpaid salaries, house allowance, overtime, rest days, and public holidays without proof that he was entitled to them. The trial court thus erred in awarding the respondent Ksh. 138,630.10, which was unsupported. Section 107 of the Evidence Act provides that whoever alleges must prove. Section 109 therefore provides that the burden of proof as to any fact lies with the one alleging in **Rupra Construction Company Limited v Makomere Civil Appeal No. E221 of 2023,** the court held that section 47(5) of the Employment Act (the Act) provides that the employee has the burden of proof in claims of unfair termination. Only when a prima facie case is established is the employer required to justify the termination of employment. In this case, the respondent produced documents, bank statements, an NSSF statement, and wage orders. Such records do not establish a case of underpayments, unpaid salaries, overtime or the claim for work during public holidays. The appellant produced payroll records, attendance sheet, duty rosters and work schedules confirming when the respondent was at work and how he was paid. Despite the evidence produced, the learned magistrate assessed overtime pay at Ksh. 93,636 by adopting a computation of 20 hours per week for 24 weeks. No justification is given for such an assessment. The award for public holidays is without proof of the days worked. And the salary award of Ksh. 4,980 allegedly for 11 days is without evidence. The trial court's awards should be set aside with costs. The respondent submitted that the trial court properly assessed the remedies sought, and that the judgment should be affirmed with costs. The overtime award arose from the applicable Wages Orders, which allow a security guard to work up to 52 hours in a week, but the respondent worked 72 hours. The evidence called in this regard was not challenged. The respondent was paid a wage of Ksh. 10,000, contrary to the Wages Orders that set the minimum wage. Section 9(2) of the Act allows parties to enter into a written contract, provided it is lawful. An employee cannot contract outside the law. Section 27 of the Act provides for the weekly work hours, which the appellant failed to address, and the overtime awarded is justified. In **Matoke v Suchak [2023] KEELRC 2393**, the court held that the Regulations of Wages (General) Orders provide that an employee who works overtime should be compensated. In **Abigail Jepkosgei Yator & another v China Hana International Co. Ltd [2018] eKLR**, the court held that without the employer filing any work records to demonstrate how overtime hours were applied, the employee's evidence is sufficient. The claim for underpayments is thus justified together with the house allowance and rest days. The respondent worked during public holidays without compensation. The appeal should be dismissed with costs. **Determination** This being a first appeal, the court may review the record, reassess the findings, and reach a conclusion. However, consider that the trial court had the chance to see and hear the witnesses and form an impression thereof. The respondent’s case is that he was assigned duties in Ruaka, a different work location. Because he could not afford transportation, the petitioner was terminated from his employment after a protest. He thus claimed damages for wrongful dismissal, underpayment, house allowance, overtime, rest days, public holidays, and a Certificate of Service. In response, the appellant asserted that the respondent deserted duty when he was assigned duty at Ruaka. He was insubordinate and refused to take lawful instructions and directions from his employer. The respondent was paid in accordance with his employment contract, and there are records to support due process. The employer has the prerogative to organise the shop floor. The employer allocates duties and deploys its employees as necessary. Such includes transfers, deployments, and redeployments as required by the business. Upon notice, the employee is required to adhere to the employer's lawful directions and instructions, and failure to do so constitutes a breach of the employment contract in terms of section 44(3) of the Act. Such conduct is also defined as gross misconduct, contrary to section 44(4) of the Act, which justifies summary dismissal. The respondent testified that he could not report to the new work site in Ruaka because it was far from his home. He thus refused to take lawful directions and instructions. He then proceeded to desert duty. Such compounded a case of gross misconduct. Notice pay and damages are not available. The learned magistrate addressed these aspects well. On the reliefs sought, indeed, as submitted by the respondent, the employer cannot contract the employee below the minimum wage and contrary to the Wages Orders. As a security guard, the respondent's employment was regulated under the Regulations of Wages (Protective Security Service) Order, 1998, read together with the regular Ministerial Wages Orders for general workers. Whereas the employer is allowed to issue the employment contract pursuant to section 9 and 10(3) of the Act, the same must abide by the applicable Wages Orders. The appellant employed the respondent as a security guard on 26 October 2018 at a wage of Ksh. 10,000 per month. The assertion by the appellant is that the same was inclusive of the house allowance. In October 2018, the basic wage for a security guard was Ksh. 13,572.90, and the house allowance for such a position at 15% is Ksh. 2,035.95 with a gross wage of Ksh. 15,608.85. The due wage, inclusive of house allowance, at Ksh. 15,608.85 had an underpayment of Ksh. 5,608.85 per month. Employment terminated for gross misconduct in August 2019. There was service for 10 months only. On the claim for underpayments, these are defined under section 89 of the Act as continuing injuries. These should be claimed within 10 months from the date of cessation of the injury, as held in **G4S Security Services (K) Limited v Joseph Kamau & 468 others [2018] KECA 827 (KLR).** Indeed, section 89 of the Act requires: ***Notwithstanding the provisions of section 4(1) of the Limitation of Actions Act (Cap. 22),*** ***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.*** **These provisions are couched in mandatory terms. A continuing injury, such as an underpayment, unpaid salary, house allowance, overtime, or rest days, is defined as occurring daily, weekly, or monthly and should be addressed within 12 months from the date of cessation. In** **Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye & another [2016] KECA 213 (KLR), the court emphasised that the employee cannot sit on his rights and then, after time has elapsed, turn around and seek to urge a time-barred case**. In **The German School Society & another v Ohany & another [2023] KECA 894 (KLR),** the court held that a claim of alleged underpayment occurs monthly and is thus a continuing injury. It must be addressed within 12 months under section 89 of the Act. Employment ceased in August 2019. The respondent filed his claim on 10 December 2019. He cannot urge a case of underpayment, overtime, house allowance or rest days out of time. Although due as addressed above, such should have been addressed within the provisions of section 89 of the Act. To this extent, the appeal is found to have merit. The underpayment and overtime awards are unjustified. For pay for days worked in August 2019, under section 17 of the Act, it is due regardless of the reasons leading to termination of employment. In employment, the employer is the custodian of work records and should produce them in terms of section 10(6) and (7) of the Act. There is no evidence of salary payment for days worked in August 2019. This is due at Ksh. 7,611.45. Regarding rest days, the respondent confirmed that he worked from Monday to Saturday. Section 27 of the Act allows for one rest day per week. His taking rest days does not justify the claim. Also, this is a continuing injury. Public holidays are special days published by the Minister. They cannot form a general claim. Each must be particularised so the employer can reply accordingly. On costs, the appeal is with merit, and the appellant is thus entitled to costs. **Accordingly, the appeal is allowed, judgment in Milimani CMELRC No. 2269 of 2019 is set aside. Costs to the appellant.** **Delivered in open court this 14th day of August 2026** **M. MBARŨ,** **JUDGE** **In the presence of:** Court Assistant: Kemboi ……………………………………………… and …………………………………..………