Magangi v Brinks Security Services Limited (Employment and Labour Relations Appeal E046 of 2024) [2026] KEELRC 1378 (KLR) (22 May 2026) (Judgment)

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAKURU ELRC APPEAL NO. E046 OF 2024 (Before Hon. Lady Justice Anna Ngibuini Mwaure) THOMAS MASAE MAGANGI……………..………...… APPELLANT VERSUS BRINKS SECURITY SERVICES LIMITED …………………………………... RESPONDENT (Being an Appeal from the Judgment and Decree of the Honourable Emmanuel E. Soita, Senior Resident Magistrate, delivered on 7th May 2024 in Nakuru CM ELRC No. 223 of 2021) JUDGMENT 1. The Appellant, being dissatisfied with the Judgment and Decree of the Honourable Emmanuel E. Soita, Senior Resident Magistrate, filed this appeal vide a Memorandum of Appeal dated 4th June 2024, on the following grounds that:- 1. The Learned Trial Magistrate erred in law and fact in awarding the Appellant based on a salary for a day watchman and not that of a night watchman without any reasons. ELRC APPEAL NO. E046 OF 2024 JUDGMENT 1 | P A G E 2. The Learned Trial Magistrate erred in law in holding that the Appellant was only entitled to claim from August 2018 to September 2020. 3. The Learned Trial Magistrate erred in law in holding that all the Appellant’s claims beyond August 2018 were time-barred. 4. The Learned Trial Magistrate erred in law in awarding the Appellant salary underpayments for 6 months only. 5. The Learned Trial Magistrate erred in law in failing to award the Appellant leave travelling allowance without giving any reasons. 6. The Learned Trial Magistrate erred in law in failing to award the Appellant soap allowance without giving any reasons. 7. The Learned Trial Magistrate erred in law and fact in holding that the Appellant was entitled to a house allowance. 8. The Learned Trial Magistrate erred in law and fact in not awarding the Appellant unpaid house allowance. ELRC APPEAL NO. E046 OF 2024 JUDGMENT 2 | P A G E 9. The Learned Trial Magistrate erred in law, failing to award the Appellant severance pay without giving any reasons. 10. The Learned Trial Magistrate erred in law in failing to award the Appellant service pay without giving any reasons. 11. The Learned Trial Magistrate erred in law in failing to award the Appellant the public holidays worked. 12. The Learned Trial Magistrate erred in law in awarding the Appellant compensation that was too low. 2. The Appellant prays that the Appeal be allowed and; i. Part of the judgment and decree of Honourable E. Soita, Senior Resident Magistrate, dated 7th May 2024, be set aside, and in its place, the court be pleased to allow the Appellant’s claims as per the Statement of claim dated 12.4.2021. ii. Costs of the appeal be borne by the Respondent. 3. The appeal was disposed of by way of written submissions. Appellant’s submissions ELRC APPEAL NO. E046 OF 2024 JUDGMENT 3 | P A G E 4. The Appellant contended that the trial court erred by restricting claims and failing to award several statutory entitlements. The Appellant relied on section 90 of the Employment Act, 2007 and Court of Appeal cases in G4S Security Services (K) Ltd v Joseph Kamau & 468 Others [2018] eKLR; The German School Society & another v Ohany & another [2023] KECA 894 (KLR); Nganga v Christ the King Parish & another [2023] KECA 1100 (KLR) to argue that his claims were not time- barred as they arose from continuing injury. The Appellant invoked the principle of stare decisis and cited the case of Geoffrey M. Asanyo & 3 others v Attorney-General [2020] eKLR and stressed the duty to give reasons from Frank & Ann Flannery v Halifax Estate Agencies Ltd [1999] APP.L.R. 02/18. 5. The Appellant submitted that he is entitled to notice pay of Kshs.16,143.70/=, underpayments of Kshs.128,794.00/=, leave travelling allowance under Paragraph 13 of LN No. 24 of 1998 reviewed to Kshs.1,100/= totalling to Kshs. 3,400.00/=, soap allowance under Paragraph 21(1) of LN No. 24 of 1998, amounting to Kshs.3,685.00/=, and unpaid JUDGMENT 4 | P A G E ELRC APPEAL NO. E046 OF 2024 house allowance under section 31 of the Employment Act, 2007, totalling Kshs.100,102.20/=. 6. The Appellant further submitted that he is entitled to severance pay of Kshs.40,626.00/= under section 40(1)(g) of the Employment Act, service pay of Kshs.9,310.12/= citing the case of Elijah Kipkoros Tonui v Ngara Opticians T/A Bright Eyes Limited [2014] eKLR, and holiday pay of Kshs.63,417.80/= under Paragraph 9 of LN No. 24 of 1998, supported by Mugunga General Stores v Pepco Distributors Ltd [1987] KLR 150, which held that mere denial is not a sufficient defence. The Appellant also relied on the Supreme Court rulings in Dhanjal Investments Ltd v Kenindia Assurance Co. Ltd [2018] eKLR and Bia Tosha Distributors Ltd v Kenya Breweries Ltd & 6 others Petition 15 of 2020, affirming every litigant’s right to a determination. 7. Overall, the Appellant urged this court to award the full reliefs pleaded, including compensation for unfair dismissal of Kshs. 193,716.00/=. Respondent’s submissions ELRC APPEAL NO. E046 OF 2024 JUDGMENT 5 | P A G E 8. The Respondent submitted that the trial court correctly applied the law in limiting underpayment claims to six months under section 90 of the Employment Act, since continuing wrongs must be filed within twelve months of cessation of employment. 9. The Respondent emphasized that the Appellant failed to produce sufficient documentary evidence, such as contracts, policies, and payslips, to prove claims for underpayment, leave allowance, soap allowance, house allowance, severance pay, and service pay. The Respondent argued that the payslips for 2020 showed payment of house allowance and overtime, while NSSF contributions were duly remitted, barring service pay under section 35(6) of the Employment Act. 10. The Respondent further submitted that the soap allowance was never contractual, redundancy was not proven, and compensation of three months’ salary plus notice pay was proper, relying on CMC Aviation Ltd v Mohamed Noor [2015] eKLR to argue that appellate courts only interfere with quantum if wholly erroneous. The courts consistently emphasized the ELRC APPEAL NO. E046 OF 2024 JUDGMENT 6 | P A G E need for timely filing and strict proof of employment claims. In Salesa Guyo Boru & 9 others v Jianxi Zhongmei Engineering Construction Co. Ltd [2019] eKLR, the court held that claims for continuing wrongs, such as housing allowance, were time-barred if filed more than 12 months after cessation of employment. 11. Similarly, in Berina Nthenya Musila & 3 others v East African Growers Ltd [2021] eKLR, claims for unpaid leave days and public holidays were dismissed as statute-barred under Section 90 of the Employment Act. In Jacob Osoro Manyinsa v Lavington Security Ltd [2023] eKLR, the court rejected claims for unpaid public holidays and accrued leave because no documentary evidence was produced. 12. In Polycarp Shitakha Shihalo v BOM Musingu High School [2019] eKLR, the court dismissed claims for leave pay, travel allowance, and underpayments due to lack of supporting evidence. Finally, in Austin Opele Okunja v Senaca East Africa [2022] eKLR, the claim for refund of uniform deductions was dismissed because the claimant failed ELRC APPEAL NO. E046 OF 2024 JUDGMENT 7 | P A G E to provide proof. Collectively, these authorities reinforce the principle that employment-related monetary claims must be filed within statutory timelines and supported by specific documentary evidence. 13. The Respondent therefore prays that the appeal be dismissed with costs and the lower court’s judgment upheld. Analysis and determination 14. Being the appellate court, it is the court’s responsibility to re-evaluate and analyze the evidence tendered before the trial court and subject it to an independent analysis so as to arrive at its own conclusion as to whether or not to uphold the decision of the trial court as set out in Selle Associates V Associated Motor Boat Company Ltd (1968) E.A. 123. 15. Having considered the records of appeal, the memorandum of appeal, and the submission by both parties, the issue for determination is whether the trial magistrate erred in awarding the reliefs sought. The trial court found the termination was due to redundancy and yet the Respondent failed to comply ELRC APPEAL NO. E046 OF 2024 JUDGMENT 8 | P A G E with Section 40 of the Employment Act. The court holds the trial court was right in his finding that the Appellant was unfairly terminated. The court upholds the decision of the trial court on that front. 16. As for the reliefs, the court considers Section 89 of the Employment Act which provides as follows: “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.” 17. In the instant appeal, the Appellant challenges the reliefs awarded by the learned trial magistrate. Upon consideration, this Honourable Court finds that the trial magistrate was correct in holding that claims for underpayment prior to 2018 were statute-barred ELRC APPEAL NO. E046 OF 2024 JUDGMENT 9 | P A G E under section 89 of the Employment Act. However, the court holds that the computation of underpayment ought to cover a period of one year, and not six months, and accordingly sets aside the award of the lower court on that point and awards underpayment for only 2018 considering suit was filed on 12th April 2021. 18. On the claim for house allowance, the court has considered Section 31 of the Employment Act which provides that an employee is entitled to house allowance unless the same is consolidated in the salary. The trite law however as in Sections 107, 108 and 109 of the Evidence Act is that, whoever alleges must prove. There are no documents like contracts of employment or any other documentary evidence to support the claim for house allowance. The same is not proved and like the trial court the same will not be awarded. 19. The Appellant also alleged he was entitled to overtime, travelling allowance, soap allowance, holiday pay and as well as service pay. All these are ELRC APPEAL NO. E046 OF 2024 JUDGMENT 10 | P A G E claimed in abstract and there is no evidence to support the same and so they are disallowed. 20. In the case of RAGOLI OLE MANDIEGI -VS- GENERAL CARGO SERVICES CIVIL APPEAL NO 23 OF 2013 the Court of Appeal held: “The employee in claiming overtime pay however is not deemed to establish the claim for overtime pay by default of the employer bringing to court such employment records. The burden of establishing hours or days served in excess of the legal maximum rests on the employee.” 21. In view of the foregoing, all these claims are not proved by the Appellant. The court finds the trial court is right in rejecting these claims. 22. The court having considered the record of Appeal and the rival submissions of the respective parties, finds the Appeal succeeds in part on the revision of the awards. The revised reliefs are as follows-: (a) Underpayment for 2018 Kshs.74,374/= (b) Compensation for unfair termination - ELRC APPEAL NO. E046 OF 2024 JUDGMENT 11 | P A G E at 6 months equivalent of salary x 16,143/70/= Kshs.96,862/20 (c) Salary in lieu of notice Kshs.16,143/= - - (d) Severance pay for half salary for 4 years Kshs.32,287/40 - (e) Uniform allowance/shoes allowance - Kshs.9,900/= (f) Leave allowance Kshs.7,109/= - Total awarded - Kshs.236,676/30 23. The Appellant will be paid costs of the lower court trial and costs of this Appeal. 24. Interest will be awarded at 14% per annum on this award from date of judgment until full payment. 25. It is so ordered. Dated, Signed and Delivered virtually at Nakuru this 22nd Day of May, 2026. ANNA NGIBUINI MWAURE JUDGE ORDER ELRC APPEAL NO. E046 OF 2024 JUDGMENT 12 | P A G E In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. A signed copy will be availed to each party upon payment of Court fees. ANNA NGIBUINI MWAURE ELRC APPEAL NO. E046 OF 2024 JUDGMENT 13 | P A G E JUDGE ELRC APPEAL NO. E046 OF 2024 JUDGMENT 14 | P A G E