https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1368

Basikiri v Radar Limited (Appeal E205 of 2025) [2026] KEELRC 1368 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1368 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Appeal E205 of 2025 JW Keli, J May 15, 2026 Between Thomas Mochumbe Basikiri Appellant and Radar Limited Respondent (Being an Appeal from the Judgment and Decree of the Hon. L. Ambasi (CM) delivered on 27th May 2025 in Nairobi MCELRC No. E611 of 2023) Judgment 1.The Appellant herein, being dissatisfied with the Judgment and Decree of the Hon. L. Ambasi (CM) delivered on 27th May 2025 in Nairobi MCELRC No. E611 of 2023 between the parties filed a Memorandum of Appeal dated the 27th June 2025 seeking the following orders: -a.The appeal be allowed and the judgment delivered on 27th May 2025 by the trial court be set aside, vacated and/or substituted.b.A declaration that the respondent constructively dismissed the appellant.c.Costs of the appeal and costs of the claim in the lower court plus interests be awarded to the Appellant.d.Such other just relief as this Honourable Court may deem fit and just to grant. Grounds Of The Appeal 2.The Honourable Trial Magistrate erred in law and fact by finding that the appellant had not proved his claim for constructive dismissal. 3.The Honourable Trial Magistrate erred in law and fact by finding that the respondent had not constructively dismissed the appellant. 4.The Honourable Trial Magistrate erred in law and fact by failing to award the appellant unpaid overtime, unpaid house allowance, unpaid leave, service gratuity and damages for constructive dismissal. Background To The Appeal 5.The Claimant/Appellant filed a claim against the Respondent vide an amended memorandum of claim dated the 18th of November 2023 seeking the following orders: -a.A declaration that the Respondent constructively dismissed the Claimant from employment.b.Unpaid overtime for Kshs. 1,397,088/-c.Unpaid house allowance of Kshs. 264,627/-d.Unpaid leave of Kshs. 112,266/-e.Service Gratuity of Kshs. 80, 190/-f.Refund of welfare contributions for Kshs. 19,800/-g.Award of damages for constructive dismissal equivalent to 12 months' salary of Kshs. 213,840/-h.Interest on (a), (b), (c), (d), (e) (f) and (g) above from the date of filing the claim till payment in full.i.Costs of the suit and interest at court rates.(pages 5-11 of Appellant’s ROA dated 11th August 2025) 6.The Claimant filed his amended list of witnesses dated 18th October 2023; amended witness statement of even date; and amended list of documents of even date with the bundle of documents attached (pages 14-44 of ROA). 7.The Respondent entered appearance and filed a response dated 11th March 2024. (pages 63-65 of ROA). In support of their response, the Respondent also filed a list of witnesses dated 28th March 2024; witness statements BERYL ODHIAMBO of even date; and list of documents of even date with the bundle of documents attached (pages 66-76 of ROA). 8.The Claimant/Appellant’s case was heard on the 2nd of December 2024, with the Claimant testifying in the case as PW1. He relied on his filed witness statement as his evidence in chief, and produced his documents as exhibits. He was cross-examined by counsel for the Respondent Ms. Ochieng’ (pages 90-92 of ROA). 9.The Respondent’s case was equally heard on the same day, with the Respondent calling one witness BERYL ODHIAMBO to testify on its behalf as DW1. She relied on her filed witness statement as her evidence in chief, and produced the Respondent’s documents as exhibits. She was cross-examined by counsel for the Claimant/Appellant, Mr. Onyari (pages 92-93 of ROA. 10.The Trial Magistrate Court delivered its judgment on the 27th of May 2025 dismissing the Claimant’s case in in its entirety, with costs (judgment on pages 82-87 of ROA). Determination 11.The appeal was canvassed through written submissions. Both parties filed. Issues for determination 12.In his submissions dated 26th November 2025, the Appellant identified the following issues for determination:i.Whether the Appellant proved his claim for constructive dismissal.ii.If the Respondent constructively dismissed the Appellant.iii.If the Appellant was entitled to the reliefs sought.iv.Who should bear the costs of the Appeal. 13.On their part, the Respondent identified the following issues for determination in their submissions dated 15th December 2025, namely:i.Whether the Appellant proved his claim for constructive dismissalii.Whether the Appellant is entitled to reliefs soughtiii.Who should bear the costs. 14.The court, having perused the grounds of the appeal, was of the considered opinion that the issues placed before the court for determination in the appeal were-A.Whether the trial court erred in finding the Appellant had not proved his claim for constructive dismissalB.Whether the Appellant is entitled to reliefs sought Whether the trial court erred in finding the Appellant had not proved his claim for constructive dismissal 15.The relevant grounds of appeal were –a.The Honourable Trial Magistrate erred in law and fact by finding that the appellant had not proved his claim for constructive dismissal.b.The Honourable Trial Magistrate erred in law and fact by finding that the respondent had not constructively dismissed the appellant. The appellant’s submissions 16.Whether the Appellant proved his claim for constructive dismissal? The Appellant instituted the claim on 17th April 2023 against the Respondent for constructive dismissal from employment. The Appellant amended his claim vide an amended memorandum of claim dated 18th October 2023 where he claimed he was constructively dismissed from employment by the respondent and claimed for the reliefs sought in his amended claim dated 18th October 2023. The respondent filed a response dated 11th March 2024 in which it contended that the claimant was lawfully terminated and the claims sought were unjustified as he was paid a consolidated salary. On 2 nd December 2024 the Appellant testified where he adopted his amended statement dated 18th October 2023.He also produced the list and bundle of documents as exhibits 1 to 7 respectively. The Appellant was not assigned work in the months of March, April, May, June, July, August, October, and November 2021, January and February 2022. He was not paid salary for the said months he was not assigned work by the Respondent. The Respondent did not communicate or inform the Appellant the reasons why he was not being assigned work as before. Consequently, the Appellant was subjected to hardship as he could not support his family, a wife and his 5 children and manage to pay his bills. As a result, the Respondent’s actions of not assigning the appellant work through made him to tender his resignation through a letter dated 25th February 2022. The Appellant produced a KRA Tax deduction card for the year 2021. The said card showed that in the months of March, April, May, June, July, August, October, and November 2021 the Respondent did not remit PAYE to KRA. (See page 38 to 39 of the record of appeal). The reason for the Respondent not remitting PAYE is that the Appellant was not assigned work in the said months and the Respondent did not pay him salary for the said months. If the Appellant was assigned work, he would have been paid salary and he would have signed the worksheets every day he reports to work as is the practice in the security sector. On the other hand, the Respondent’s witness during the hearing testified that the Appellant was assigned work and paid salary in the aforesaid months. The Respondent did not tender any worksheets to prove that the Appellant was assigned work. Further, the Respondent did not adduce any pay slips for the months it alleged that the Appellant was assigned work and paid. If the Appellant was assigned work and paid salaries as contended by the Respondent, the PAYE would have been remitted and the same would have been captured in the tax deduction card for the year 2021 which the Appellant exhibited as evidence. (See page 37 to 28 of the record of appeal). The Respondent proved his claim on a balance of probability as required. An employment claim is a civil claim which ought to be proved on a balance of probability. As demonstrated above, the appellant proved his claim for constructive dismissal on a balance of probability thus the trial court erred in fact and law in finding that he did not prove his claim. The Appellant did not stop working for the Respondent. He was always ready to work but he was not assigned any work by the Respondent despite asking his supervisor why he was not being assigned. He left the Respondent’s employment on 31st November 2021 as a result of not being assigned work and paid salary. (See page 91 of the record of appeal). The trial court dismissed the appellant’s claim because he did not complain of not being assigned work and give reasons when he tendered his resignation. (See page 77 and 78 of the record of appeal). The employee does not need to complain, issue a notice to the employer or even give reasons why he is resigning. The trial Court erred in law by finding that by the Appellant not complaining or giving reasons while tendering his resignation, the same did not amount to constructive dismissal. In Western Excavating ECC Ltd –vs- Sharp (1978) 2 WLR 344, Lord Denning stated: ‘’If the employer is guilt of conduct which is significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving notice at all.’’ The resignation of the Appellant from employment was not voluntary but was triggered by the Respondent’s actions of not assigning him work and paying him salary. Therefore, the Respondent’s actions amounted to constructive dismissal. a) Whether the Respondent constructively dismissed the Appellant from employment? The Respondent did not assign the Appellant work on the months of March, April, May, June, July, August, September, October and November 2021 respectively. He was only assigned work on the months of January, February and December 2021. The Respondent did not communicate or inform the Appellant the reasons why he was not being assigned work as before the previous years. Consequently, the Appellant was subjected to hardship as he could not support his family, a wife and his 5 children and manage to pay his bills. As a result of the Respondent not assigning work to the Appellant and paying him for the months he was not assigned work, the Claimant tendered his resignation on 18th February 2022 thus the Respondent constructively dismissed him from employment. The Claimant adduced KRA Tax deduction card which showed that the months he was not assigned work, no tax was remitted by the Respondent. The Respondent contended that it assigned him work. However, the Respondent did not produce worksheets and pay slips to prove that the Appellant was assigned work and paid salary in the months of March, April, May, June, July, August, September, October and November 2021, as well as the months of January and February 2022 respectively. The Black’s Law Dictionary (10th Edition) defines constructive dismissal as; ‘’An employer’s creation of working conditions that leave a particular employee or group of employees little or no choice but to resign, as by fundamentally changing the working conditions or terms of employment; an employer’s course of action that, being detrimental for an employee, leaves the employee almost no option but to quit.’’ The Court of Appeal in Coca Cola East & Central Adfrica Ltd – VS- Maria Kagai Lugaga [2015] eKLR noted the following concerning constructive dismissal: ‘’The key element in the definition of constructive dismissal is that the employee must have been entitled to or have the right to leave without notice because of the employer’s conduct. Entitled to leave has two interpretations which give rise to the test to be applied. The first interpretation is that the employee could leave when the employer’s behavior towards him was unreasonable that he could not be expected to stay-this is the unreasonable test. The second interpretation is that the employer’s conduct is so grave that it constitutes a repudiatory breach of the contract of employment-this is the contractual test.’’ In Max Masoud Roshankar & Another v Sky Aero Limited [2015] eKLR where the Court held that; “. . . Constructive dismissal, also called Constructive discharge, occurs when employees resign because their employer’s behavior has become so intolerable or made life so difficult that the employee has no choice but to resign. Since the resignation was not truly voluntarily, it is in effect a termination. For example, when an employer makes life extremely difficult for an employee to resign rather than outright firing the employee, the employer is trying to effect a constructive discharge. In the case of Emmanuel Mutisya Solomon versus Agility Logistics, Cause No. 1448 of 2011 the court held that the basics are that constructive dismissal may be defined as a situation in the workplace, which has been created by the employer, and which renders the continuation of the employment relationship intolerable for the employee to such an extent that the employee has no other option available but to resign.’’ In Nathan Ogada Atiagaga Vs David Engineering Limited Cause No. 419 of 2014 the court observed that; “Constructive dismissal occurs when an employee resigns because their employer’s behavior has become so intolerable or made life so difficult that the employee has no choice but to resign. Since the resignation was not truly voluntary, it is in effect a termination. For example, when an employer makes life extremely difficult for an employee to force the employee to resign rather than outright firing the employee, the employer is trying to effect a constructive discharge.’’ The Appellant has demonstrated that as a result of not being assigned work and being paid salary by the Respondent, the same necessitated his resignation thereby the Respondent constructively dismissed the Appellant from employment The Respondent’s submissions 17.The respondent relied on the decision in Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] KECA 394 (KLR), where the court outlined the legal principles relevant for determining constructive dismissal as: a) What are the fundamental or essential terms of the contract of employment? b) Is there a repudiatory breach of the fundamental terms of the contract through conduct of the employer? c) The conduct of the employer must be a fundamental or significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essentials of terms of the contract. d) An objective test is to be applied in evaluating the employer’s conduct. e) There must be a causal link between the employer’s conduct and the reason for employee terminating the contract i.e causation must be proved f) An employer may leave with or without notice so long as the employer’s conduct is the effective reason for termination. g) The employee must not have accepted, waived, acquiesced or conducted himself to be estopped from asserting the repudiatory breach; the employee must within a reasonable time terminate the employment relationship pursuant to the breach. h) The burden to prove repudiatory breach or constructive dismissal is on the employee. i) Facts giving rise to repudiatory breach or constructive dismissal are varied. The respondent submitted that in this case, the Appellant failed to prove a majority of the principles laid out by the court in Coca Cola v Maria Kagai (supra). The Appellant did not establish that the conduct of the employer caused a significant breach going to the root of the contract. 9. The appellant merely alleged that he was not given work for a number of months, being March, April, May, June, July, August, September, October and November of 2021. No evidence was adduced to prove the same, neither was there any complaints or communication of lack of work to the Respondent. 10. The appellant did not provide substantial evidence to prove that his resignation was caused by the Respondent’s conduct, as a matter of fact, the Respondent only found out about the appellant’s frustration after being sued. The Respondent was never notified of any issues regarding work schedules and had it been notified, it would have responded by using its internal mechanisms. The Respondent’s human resource manager, Beryl Odhiambo, testified that the appellant worked the entire year of 2021 including March- November of 2021. We refer to page 93 of the typed proceedings in the Record of Appeal. There were no complaints from any supervisor that an employee was not assigned worked, nor was there any written or verbal communication by the appellant that he was not assigned work for any month in 2021. In applying the objective test, it is evident that the lack of communication on the part of the appellant denied the respondent any chance to evaluate any issues that could have been complained of. The Respondent’s conduct in this case did not lead to termination of the employment since the alleged lack of work was never addressed by the appellant. The Respondent’s conduct could not have been the cause of termination as rightfully stated by the trial magistrate since the resignation letter did not in any way address that lack of work was the reason for resignation. ( refer to page 85 of the Judgment in the Record of Appeal). . The appellant issued a Resignation notice dated 18th February 2022 which simply stated as follows: - “RE: RESIGNATION NOTICE I Thomas Mochumbe Basikiri of company number 5379 hereby wish to tender my resignation from your organization effective 3 days upon receipt of this letter. I request that you process my dues and service pay. I thank you for the opportunity” ( refer to page 75 of the Record of Appeal.) It is worth noting that the salaries for the months that the appellant alleges he had not worked were not claimed in his amended memorandum of claim, which further upholds the respondents’sentiments that he worked from January to December 2021. In cases of constructive dismissal, it is the burden of the employee to prove repudiatory breach or constructive dismissal. During cross examination, the appellant admitted that he had not written to complain that he was not assigned any work. Furthermore, no tangible evidence was produced in court to show that he was not assigned work in any of the months alleged in his memorandum of claim. We refer to page 91 of the typed proceedings in the record of appeal. We fully concur with the trial magistrate that the appellant failed to prove constructive dismissal and the resignation letter clearly indicated that the termination was lawful. We humbly submit that the appellant was not constructively dismissed and pray that this appeal is dismissed for lack of merit. Decision 18.This being a first appellate court, it was held in Selle v Associated Motor Boat Co. [1968] EA 123 that:- “The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.” 19.The appellant tendered his resignation from employment of the respondent dated 18th February 2022 and stated as follows-“RE: RESIGNATION NOTICE I Thomas Mochumbe Basikiri of company number 5379 hereby wish to tender my resignation from your organization effective 3 days upon receipt of this letter. I request that you process my dues and service pay. I thank you for the opportunity” ( refer to page 75 of the Record of Appeal.) It was received by the employer on the even date. The appellant sent the employer through Kituo ch Sheria a demand letter dated 15th March 2022. A demand letter is a precursor for litigation. The demand was of terminal dues of house allowance, annual leave and Radar Welfare Association dues. (pages 42-43 of ROA). The appellant appeared to have experienced the biblical Damascus moment, making a drastic change from the demand letter, as in the amended claim, he raised issues of constructive dismissal in paragraphs 4-7 as follows:-‘4).I faithfully and diligently worked for the Respondent from 13th June 2012 till on March 2021 when the Respondent stopped assigning me work. The Respondent did not communicate or inform me the reasons why I was not being assigned work as before. As a result, I was subject to hardship as I could not support my family, a wife and my 5 children as well as pay my bills.5).The Respondent did not assign me work on the months of March, April, May, June, July, August, September, October and November 2021 respectively. I was only assigned work in the months January, February and December 2021. In January and February 2022 I was not assigned any work by the Respondent.6).As a result of the Respondent not assigning work and pay me for the months I was not assigned work, I tendered my resignation on 18th February 2022 thus the Respondent constructively dismissed me from employment. -207).I had no intention of resigning but only did so because the Respondent did not assign me work from the months of March to November 2021, January and February 2022 thus the respondent made my employment intolerable and frustrated me thereby necessitating my resignation from employment.’’ (page 6 of ROA). The claim was opposed by the respondent vide response dated 11th March 2024 to the amended claim (page 64-65 of ROA). 20.During cross-examination, the appellant told the trial court he resigned and did not give reasons. He told the court he never wrote a complaint. In re-examination, it is recorded the appellant told the court he worked from13th June 2012 until 31/12/2021. That he worked and was not paid. (page 91 of ROA). The respondent’s witness Beryl Odhiambo on cross-examination told the trial court the appellant was assigned work from March to November 2021 and worked on various projects. The witness did not have payslips for the months. (refer to pages 92-93 of ROA) 21.The trial court relied on the interpretation of the doctrine of constructive dismissal, which is a common law principle, in various authorities and held as follows: ‘An employee is allowed to terminate their employment for personal reasons. Constructive termination often arises when the employer makes it impossible for the employee to deliver on his mandate thus forcing the employee to take the decision to resign from work. Whether the employer has rendered the work environment so hostile as to force the employee into resigning is a matter of fact to be determined on a case by case basis. The primary consideration is that the employer's conduct must have fundamentally breached the employment contract as to result in an implied repudiation of the contract constructive dismissal as held in Ayonga v Falcon Signs Limited (Cause 878 of 2017) [2023] KEELRC 300 (KLR). The concept of constructive dismissal is not addressed under the Employment Act and thus, for the same to be inferred, the party seeking to rely on such matter must plead the same to allow the Respondent to address it. Constructive dismissal cannot be inferred by the court outside the pleadings before it. In Ongera v Gianchore Tea Factory Co. Limited [2025] KECA 88 (KLR) the Court of Appeal held that:- "The law is clear that it is not enough for an employee to claim that they were terminated constructively or unfairly, they must place tangible evidence/material before the court in support of their case and prove their claim on a balance of probabilities. Mere stopping to work by an employee does not automatically amount to termination of employment." In the instant case, the court finds that the Claimant tendered his resignation letter dated 18th February 2022 in which he stated that he wished to tender his resignation but gave no reasons, and which resignation was accepted by the Respondent who subsequently terminated his employment was the reason for the separation of the parties. The allegations that the Respondent failed to give the Claimant work for months leading to the said resignation was only pleaded but was not supported by any evidence. On cross- examination, the Claimant affirmed that he never wrote to complain about this. In the absence of tangible evidence and material evidence to support the allegations of frustrations leading to the Claimant's resignation, then this court holds and finds that the termination of the claimant's employment was lawful’. 22.The burden of proof of constructive dismissal was on the appellant as held in Coca Cola East & Central Africa Limited v Maria Kagai Lugaga [2015] eKLR, by the Court of Appeal. The trial court relied on the decision. The Court of Appeal set out the principles for determination of constructive dismissal to include the following:- a. What are the fundamental or essential terms of the contract of employment" b. Is there a repudiatory breach of the fundamental terms of the contract through conduct of the employer" c. The conduct of the employer must be a fundamental or significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. d. An objective test is to be applied in evaluating the employer's conduct. e. There must be a causal link between the employer's conduct and the reason for employee terminating the contract i.e causation must be proved. f. An employee may leave with or without notice so long as the employer's conduct is the effective reason for termination. g. The employee must not have accepted, waived, acquiesced or conduct himself to be estopped from asserting repudiatory breach; the employeе must-within a reasonable time terminate the employment relationship pursuant to the breach. h. The burden to prove repudiatory breach or constructive dismissal is on the employee. i. Facts giving rise to repudiatory breach or constructive dismissal are varied" (emphasis given). Constructive dismissal can only arise from the lived reality of the employment relationship. There has to be unequivocal evidence of the existence of unconducive conduct of the employer to the effect of repudiation of the contract. The employee ought to be innocent in the terms of contribution to the unconducive environment. In my mind, the evidence of an unconducive environment caused by the employer's conduct must be demonstrated to have existed during the employment, and this can be evidenced by the existence of employees' complaints during the employment relationship and by the expression of frustration in the written resignation letter. Reasons for constructive dismissal cannot be based on creative and imaginative writing of demand letters and in pleadings. Those are mere allegations unless backed by evidence of the conduct of the employer which created an unconducive work environment, vide written complaints and in the resignation letter. Applying the foregoing, I find the instant claim of constructive dismissal on allegations of lack of assignment of work to have been fetched from the air and pleaded in the amended claim. There is no iota or even whiff of any unconducive conduct or blame of employer in the resignation letter. Constructive dismissal is the involuntary termination of employment by the employee. The employee had the duty to prove the same. In this case, there was no evidence of constructive dismissal. The court further opined the claim for constructive dismissal was afterthought. The court, on perusal of the demand letter, which is a precursor to litigation, found no claim of constructive dismissal. I am guided by principles for appeal decisions in Mbogo V Shah [1968] EA Page 93 De Lestang V.P (As He Then Was) Observed At Page 94:“I think it is well settled that this court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.’’ The Court holds that the appellant did not prove the claim for constructive dismissal and I so find and uphold the finding of the trial court. Whether the appellant was entitled to relief sought 23.The appellant vide Amended Memorandum of Claim dated 18th October 2023,sought for judgment against the Respondent for :-a.A declaration that the Respondent constructively dismissed the Claimant from employment.b.Unpaid overtime for Kshs. 1,397,088c.Unpaid house allowance for Kshs. 264,627d.Unpaid leave for Kshs. 112,266.e.Service Gratuity for Kshs. 80,190f.Refund of welfare contributions for Kshs. 19,800g.Award of damages for constructive dismissal equivalent to 12 months' salary 213,840h.Interest on (a), (b), (c), (d), (e) (f) and (g) above from the date of filing the claim till in full. i. Costs of the suit and interest at court rates. ( see pages 10-11 of ROA). 24.The ground of appeal was - The Honourable Trial Magistrate erred in law and fact by failing to award the appellant unpaid overtime, unpaid house allowance, unpaid leave, service gratuity and damages for constructive dismissal. 25.On the prayer for a declaration that the Respondent constructively dismissed the Claimant from employment – The court upheld the decision of the trial court and disallowed the claim of constructive dismissal. 26.On claim of Unpaid overtime for Kshs. 1,397,088/= -The Appellant submitted that used to work for 12 hours every day from 6:00pm to 6:00am for six days in a week. On cross-examination, the respondent’s witness, Beryl Odhiambo, confirmed that the Appellant used to work overtime and was not paid for it, but was given one rest day a week. (See page 93 of the record of appeal). The trial court misdirected itself by finding at paragraph 27 of the judgment that the pay slips adduced by the Appellant showed that he was paid overtime. There are no pay slips that has item of overtime. (See pages 23 to 36 of the record of appeal). The Appellant is entitled to overtime as he worked for 12 hours a day for 7 days, making 84 hours per week as opposed to 56 maximum hours per week being the normal working hours for employees under the Regulation of Wages (General) Order. He thus worked for an extra 28 hours per week and he is entitled to overtime for the period he was in employment from 13th June 2012 till 31st December 2021, his last day of work. The Regulation of Wages (General) Order set out the hours of work and for payment of overtime and the formula for calculating the overtime. The Regulation of Wages (General) Order provides for the formula for overtime calculation as provided for under Rule 6 which provides as follows:- “6. (1) Overtime shall be payable at the following rates. (a) for time worked in excess of the normal number of hours per week at one and one-half times the normal hourly rate; (b) for time worked on the employees normal rest day or public holiday at twice the normal hourly rate. (2) For the purpose of calculating payments for overtime in accordance with subparagraph (1), the basic hourly rate shall, where the employees are not employed by the hour, be deemed to be not less than one two-hundred-and twenty-fifth of the employee’s basic minimum monthly wage. (3) Notwithstanding subparagraphs (1) and (2) of this paragraph and paragraph 5, overtime plus time worked in normal hours per week shall not exceed the following number of hours in any period of two consecutive weeks - (a) one hundred and forty-four hours for employees engaged in night work; (b) one hundred and sixteen hours for all other adult employees.” Therefore, he is entitled to unpaid overtime for Kshs. 1,397,088/= calculated as: 12th June 2012 to 12th June 2020 (1.5x17,820/1/225x28hours per week x384 weeks) = 1,277,337.6/= 13th June 2020 to 28th February 2021 (1.5x17,820/1/225x16hours per week x28 weeks) = 106,444.8/= 1 st December 2021 to 31st December 2021 ((1.5x17,820/1/225x28hours per week x 4weeks) = 13,305.6/= In Richard O Moseti & another v Radar Security Company Limited [2015] eKLR the claimants were awarded overtime. The trial court stated as follows; ‘Normal working hours are 8 hours per day. Where an employee remains at work over and above the legal and normal work hours, every hour worked beyond attract extra pay. In this case the Claimants were at work for 12 hours a day. The 4 extra hours should be compensated. Claimants awarded Kshs.252, 288.00. In Alfred Ongosi Ombeo v Radar Security Limited [2018] eKLR the court awarded the claimant overtime. The court stated as follows; Regulation 6 of the Regulation of Wages (Protective Security Services) Order, 1988 provide for 52 hours of work spread over 6 days of the week, thus averaging about 8 hours per day. It is notorious fact that security guards in this country generally work two shifts of 12 hours each day and the Court would find in favour of the Claimant as claimed. 27.Conversely, the respondent submitted on the claim for overtime as follows:- The Appellant resigned on the 18th of February 2022, even though he stopped working for the Respondent on the 31st of December 2021. He was required to have filed the claim for overtime before the 19th of February 2023; however, the claim was filed on the 17th of April 2023 which falls outside the statutory requirement of 12 months. Section 89 of the Employment Act clearly stipulates that continuing injuries must be filed with 12 months of the cessation of work. We are guided by the case of Mwadime & 3 others v Polystar Plastiks Limited [2024] KEELRC 2793 (KLR) where the court stated that, “...overtime in its nature, accrues monthly. It is a continuing injury if not paid monthly. Where such injury or damage continues to accrue, under the provisions of Section 90 of the Employment Act, the claimant should have addressed it within 12 months from the date of cessation. The learned trial magistrate further noted that the Respondent had not proved that he had worked for any extra hours. The burden of proving any extra hours worked lies with the employee. We are further guided by the case of James Orwaru Nyaundi v Kilgoris Klassic Sacco Limited [2022] KEELC 1176 (KLR) where court stated that, “…the claim for overtime and public holidays worked compensation has just been thrown to court. This Court has increasingly urged this practice must come to a stop. It is not enough for a claimant to just give figures to court, asserting that he or she is entitled to them, cross his or her fingers hoping that the Respondent does not place documents before court, and as a consequence of the failure say “behold the claim is proved, the employer has not tendered in evidence any documents.” The claimant must if she or he has to succeed in the claim, be specific on the days when he worked overtime, the specific public holidays, when he worked and wasn’t paid for. We fully concur with the learned trial magistrate and reiterate our submissions in the lower court, that the claim for overtime was filed out of time and should be dismissed for lack of merit. 28.The trial court held that the payslips produced showed the appellant was paid overtime. The court perused the payslips filed (pages 23-36 of ROA) and agreed with the appellant there was no item of overtime in the payslips. On that basis, the trial court ruled in fact. The respondent submits the claims were time-barred, having not been filed within 12 months of the cessation of injury, in this case, termination. The appellant resigned on the 18th February 2022. He filed his claim dated 17th April 2023, thus outside 12 months. The trial court relied on the decision in Mutinda v Styroplast Limited [2025] KEELRC 1306 (KLR) where the court held –‘Borrowing from the foregoing court decisions on what constitutes a continuing injury, and considering that the Claimant continued to work under the same circumstances that he now complains of, I find and hold that the claims of overtime and leave pay give rise to a legal injury which assumes the nature of a continuing wrong, and which squarely falls within the ambit of a continuing wrongs contemplated under Section 90 of the Employment Act, 2007’’ Overtime is payable with salary or as it accrues. The non-payment accrues each month until the cessation of the injury. Overtime is thus a continuing injury as held in Mutinda case above. Section 89 of the Employment Act reads- ‘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.’ The claim of overtime was upto the last day of work. The claim for overtime was time barred the suit having been filed outside the 12 months of termination. The Court of Appeal held back pay to be continuing injury in The German School Society & another v Ohany & another [2023] KECA 894 (KLR) –‘There is no contest that a claim premised on a continuing injury must be filed with 12 months after cessation of the injury as provided by section 90. This position was upheld by this Court in G4S Security Services (K) Limited v Joseph Kamau & 468 Others [2018] eKLR. The contestation before this Court is whether the claims in question fall within the ambit of “a continuing injury” as contemplated by section 90. The essential question for determination before the High Court was the maintainability of the complaint due to the limitation period prescribed by the above section. Central to this question is the meaning of the phrase “a continuing injury” and whether the respondent’s claims fell within the said definition. Before the High Court and this Court, the parties did not attempt to define what constitutes “a continuing injury.” From the record, we note that the respondent’s counsel only cited the definition of ‘back pay” in the Black’s Law Dictionary 9th Edition at page 159 which defines it as “the wage or salary that an employee should have received but did not because of an employer’s unlawful action as setting or paying the wages or salary” to support her claim that back pay was a continuing state of affairs.’’ The claim of overtime is disallowed. 29.The claim for house allowance was not merited as the contract was on payable wages and the court confirmed that the minimum wages at exit from employment for a security guard was Kshs. 15,201 add 15% housing total would be 17,481.15 thus salary paid to the appellant of Kshs. 17,820 was in compliance with the Minimum Wages Orders. The court further upheld the finding of the trial court that the housing claim was a continuing injury, thus time-barred. 30.On leave- The trial court held there was no proof of the appellant having proceeded on leave. During cross-examination, the witness for the respondent stated leave was provided for in the contract. On perusal of the contract, I did not find a provision for annual leave. Can it then be said that the claim was time barred when in the first instance it was not provided for yet it is a statutory right under section 28 of the Employment Act to wit –‘An employee shall be entitled—(a)after every twelve consecutive months of service with his employer to not less than twenty-one working days of leave with full pay;’ Further an employee is allowed to carry forward leave days under section 28(4) of the Employments Act to wit-‘The uninterrupted part of the annual leave with pay referred to in subsection (3) shall be granted and taken during the twelve consecutive months of service referred to in subsection (1) (a) and the remainder of the annual leave with pay shall be taken not later than eighteen months from the end of the leave earning period referred to in subsection (1)(a) being the period in respect of which the leave entitlement arose.’ I do find that the Respondent flouted the Law by failing to grant the appellant leave. The court held so as the witness stated annual leave was provided for in the employment contract and the court did not find the same. The court only found provision for rest days.(see contract at pages 73 of ROA) The court concluded the appellant was not granted leave in the entire working period. The fact that the employee is allowed to carry forward leave to a limit of 18 months removes the claim of leave from the continuing injury claim. I find the unprovided leave was a deferred statutory entitlement and a vested employee right of the appellant and cause of action accrued on termination, thus within the three years under section 89 of the Employment Act . I deviate from finding in Mutinda case on leave and also Chimera Chimoyo Alfan v Steel Makers Limited [2021] KEELRC 1018 (KLR). The court, on first appeal, sets aside the trial court's decision and awards leave as pleaded. 31.The court, on re-evaluation of the evidence before the trial court, upheld the finding on service pay pursuant to section 35(6) of the Employment Act. The court also upheld the trial court the finding on welfare claims. Conclusion 32.The appeal was allowed only on leave. The Judgment and Decree of the Hon. L. Ambasi (CM) delivered on 27th May 2025 in Nairobi MCELRC No. E611 of 2023 is set aside and substituted as follows-Judgment is entered for claimant against the respondent as follows-Leave in lieu Kshs. 112,266/Costs of the suit and interest from judgment date. 33.The appellant is awarded ½ costs of the appeal 34.It is so Ordered. DATED, SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH DAY OF MAY, 2026.JEMIMAH KELI,JUDGE.In The Presence Of:Court Assistant: OtienoAppellant- OnyariRespondent: Ms Mwangi h/b Ms Kathambi