Masinde v Radar Limited (Appeal E208 of 2024) [2026] KEELRC 1503 (KLR) (29 May 2026) (Judgment)

Masinde v Radar Limited (Appeal E208 of 2024) [2026] KEELRC 1503 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1503 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Appeal E208 of 2024 NJ Abuodha, J May 29, 2026 Between Videlis Simiyu Masinde Appellant and Radar Limited Respondent (Being an appeal from the Judgment Hon. Betty Cheloti delivered on 15th July, 2024 in Milimani CMEL Cause No. E341 of 2021) Judgment 1.Through the Memorandum of Appeal dated 2nd October, 2024, the Appellant appeals against whole of the Judgment of Honourable Betty Cheloti delivered on 15th July, 2024 in Milimani CMEL Cause No. E341 of 2021 on grounds inter alia:a.The learned magistrate erred in law by failing to consider the termination letter on record and the question of whether or not the claimant was terminated thereby making an error on the issue of fact.b.The learned magistrate made a finding that the claimant was on fixed term contract when there is no evidence to that effect.c.The learned magistrate failed to make a determination on the special damages and failed to give reasons for the dismissal of the entire suit with regard to the special damages thereby making an error in both law and fact.d.The learned magistrate failed to consider section 31 of the Employment Act as read together with regulation 5 of the Regulation of wages protective security services with regard to the issue of house allowance.e.The learned magistrate failed to consider section 27 of the Employment Act as read together with regulation 6 and 7 of the Regulation of wages protective security services with regard to the issue of overtime.f.The learned magistrate failed to consider section 27 of the Employment Act as read together with regulation 9 of the Regulation of wages protective security services with regard to working on public holidays.g.The learned magistrate failed to consider section 28 of the Employment Act as read together with regulation 10 of the Regulation of wages protective security services with regard to the issue of annual leave. 2.The Appellant prayed that the judgment by learned Magistrate delivered on 15th July, 2024 in Milimani CMEL Cause No. E341 of 2024 be set aside and replaced with the judgment of this honorable court entering judgment in line with the prayers contained in the memorandum of claim as presented in the record of appeal. 3.The Appeal was disposed of by written submissions. Appellant’s Submissions 4.The Appellant’s Advocate, Mr. Wetaba in his opening remarks drew the court’s attention the fact that the respondent did not defend the claim at the trial stage hence there was no cross-examination of the appellant yet the court aquo dismissed the claimant’s suit. Counsel further contended that oral testimony is evidence and for the trial court to hold that it was not supported by evidence, the court ought to have given reasons for holding so. Counsel relied on section 10(7) of the Employment Act which provided that if in any proceedings an employer fails to produce a written contract or written particulars prescribed in the Act, the burden of proving or disproving an alleged term of employment will be on the employer. 5.According to Mr. Wetaba, the appellant filed a memorandum of claim in the trial court and a witness statement where he stated the number of hours worked and the circumstances of his termination. He further stated the circumstances under which he worked such as working overtime, underpayment, no rest days. Non-payment of house allowance and working throughout public holidays. The respondent on the other hand filed a statement of response on what they chose to contest and what they were silent about. The special damages were not contested and the respondent was not keen to put the appellant to strict proof. 6.On the issue that parties are bound by their pleadings, counsel relied on the case of Galaxy Paints Company Limited v. Falcon Guards Limited Civil Appeal Number 219 of 1998 where the court stated that the issues for determination flow from the pleadings. On the issue whether the appellant was wrongfully terminated, counsel submitted that the trial court erred in finding that the claimant continued to work and enjoy the same perks even after his contract had expired. Counsel wondered which contract the court was referring to. According, to Mr. Wetaba, the alleged contract was not presented to the court considering the respondent never testified before the trial court to submit their documents. 7.Counsel further stated that the contract stated that it would run for 52 weeks and at the expiry, the employer was to pay terminal benefits equivalent to twenty-four working days salary and house allowance less any deductions as the company by law required or permitted to make. According to counsel, the contract ended 52 weeks after 15th May, 2000 and that was largely one year and considering the claimant worked until 2019, the trial court was in error in carrying the terms of the contract into the termination that occurred in the year 2019. According to Counsel, fixed term contracts do not require definitions and the said contracts expire after the term contract term ends and in this case it was 52 weeks after 15th May, 2000. 8.Concerning reasons for termination, counsel drew the attention of the court to page 29 of the record of appeal which captured the reasons for termination as “overwhelming theft incidences at the Family Bank facilities very well known to you and the public domain that has led to termination of services by Family Bank”. Counsel submitted that the appellant was not involved in any of the theft incidences and had never been summon to any police station over these thefts and that the services of the appellant were terminated without giving him a chance to present his case. 9.According to Mr. Wetabe, the appellant worked for the respondent for 19 years and was issued with a termination letter yet the court relied on a fixed term contract issued some 19 years back which was intended to run for 1 year. According to counsel, the termination of the appellant’s contract was because of termination of provision of security services to Family Bank for reasons of frequent incidents of theft at the Bank. This according to counsel was a case of redundancy given that the appellant was not to blame for these incidents. The Court, according to counsel appreciated the reasons for the termination but nowhere in the termination letter was there reference to fixed term contract. 10.In this respect, counsel relied on the case of Kenya Airways Limited vs. Aviation Workers Union where the court relied on the case of Thomas De La Rue (K) Ltd v David Opondo Umutelema [2013] eKLR where the court explained the importance of section 40(1)(a) and (b) of the Employment Act and maintained that it was mandatory to comply with these provisions of the law. To demonstrate further the mandatory nature of these provisions of the law and the process of redundancy, counsel further relied on the cases of Francis Maina Kamau v. Lee Construction [2014]eKLR and Cargill Kenya Limited v. Mwaka & 3 Others [2021]KECA 115 (KLR). 11.Counsel therefore urged the court to reach a finding that the appellant was wrongfully terminated by virtue of failure to adhere to section 40 of the Act. In this respect, counsel referred the Court to the case of Walter Ogal Anuro v. TSC [2013] eKLR. 12.Concerning special damages counsel submitted that the court did not address itself to the issue and there is no reason record why the court failed to award special damages. On the issue of house allowance, Mr. Wetaba submitted that at the trial the appellant stated that he was being paid Kshs. 1,026 as house allowance which was less than 15% stipulated by the law. According to Counsel, section 31 of the Employment Act sets house allowance at 31% of basic minimum wage. In this respect, counsel relied on the case of Matoke v. Suchak (Appeal E046 of 2022 ) [2023] KEELRC 2393(KLR). 13.Concerning overtime, counsel submitted that the respondent’s witness statement does not dispute the fact that the claimant worked from 6:00 am to 6:00 pm. In this respect counsel drew the court’s attention to section 27 of the Act concerning hours of work and further to relevant provisions regulating overtime, public holidays and annual leave. Mr. Wetaba further relied on the case of AA v. SGA Security Solutions [2022] KEELRC 1553(KLR) and Mwanga v. Metal Cans and Closures (K) Ltd [2022] KEELRC 1108 (KLR). Counsel further drew the court’s attention to section 48(1)(a)and (b) of the Labour Institutions Act (LIA) and Minimum Wage Order. According to counsel section 48(1)(b) of the LIA clearly showed the minimum wage order and wage regulations for security guards and that they constitute the essential part of the contract for service in security sector and regard should be taken of the Wage Order in determining wages for security guards. 14.Counsel therefore concluded that the trial court erred in dismissing the appellant’s claim and prayed that the judgment be set aside and substituted with a judgment allowing the claim as prayed in the memorandum of claim before the trial court. Respondent’s Submissions 15.Mr. Wachakana for the respondent on the other hand submitted among others that on the allegations that the trial magistrate did not consider the termination letter, the allegation was vexatious since there was overwhelming theft incidences at Family Bank facilities and the contract between the appellant and the Bank (sic) lapsed. According to counsel the trial magistrate considered this evidence and the fact that the appellant had submitted that the notice issued by the respondent to the claimant had been pegged on a lapsed contract. On the issue of housing allowance counsel submitted that under section 31 of the Employment Act, the trial magistrate made a finding that the contract had lapsed by effluxion of time by relying on the case of Justin Beswick v. LDC [2022] eKLR and that the contract was not renewed in the circumstances. Regarding special damages, counsel submitted that the trial magistrate properly considered the matter in view of section 43(1), (2) of the Employment Act when dismissing the claim. Regarding leave, counsel submitted that the trial court properly found that the appellant had been paid during the lapsed contract. Regarding overtime and hours of work and section 48(1) of LIA counsel further maintained that these were properly considered by the trial magistrate when she held that the contract relied on had expired. 16.On the circumstances when an appellate court can interfere with the decisions of the trial court, counsel invoked the decision in the case of Mbogo v. Shah [1968] EA 93 where it was stated that an appellate court will only interfere if the trial judge misdirected himself or acted on matters which he should not have acted upon or failed to take into consideration matters which he should have taken into consideration and in doing arrived at a wrong conclusion. Counsel further relied on the case of Walter Ogal Anuro v. TSC cited earlier by the appellant’s counsel in support of his submission that section 41, 43, 45 and 47 of the Employment Act provided for the threshold for substantive and procedural fairness in determining what amounts to lawful termination of service. According to counsel, the appellant was issued with a notice of termination dated 7th November, 2019 which was to take effect from 7th December, 2019 and that the termination notice was as a result of overwhelming cases of theft at Family Bank facilities where the appellant was stationed resulting in the Bank terminating the contract it had with the respondent. According to counsel, the respondent in terminating the contract invoke the one-month notice clause in the contract. It was therefore misleading for the appellant to submit that the trial court failed to consider the termination letter on record. 17.Concerning the nature of a fixed term contract, counsel drew the court’s attention to the case of National Water Conservation & Pipeline Corporation v. Jayne Kanini Mwanza, Civil Appeal No. 178 of 2014 where the court stated that a fixed term contract will terminate on the sunset date unless extended in terms stated in the contract and that a court will not rewrite a contract freely entered into between the parties. Counsel in addition relied on the case of Benard Wanjohi v. Kirinyaga Water and Sanitation Company Limited & Another [2012] eKLR where Rika J stated that there was no obligation to give reasons to an employee why a fixed term contract would not be renewed. According to Mr. Wachakana, in this particular case, there was no evidence that the contract would be renewed. 18.Regarding the substantive and procedural fairness of the termination, counsel relied on the provisions of section 47(5) of the Employment Act regarding the burden of proof of termination and the case of Josephine M. Ndungu & Others v. Plan International Inc. [2019] eKLR where the court stated that the burden of proving unfair termination was on the employee and the burden is discharged once prima facie the employee has established that the termination did not fall within the threshold set out in section 45 of the Act. In this particular case, counsel submitted that the appellant was properly terminated. Determination 19.The court has considered the grounds in the Memorandum of Appeal, the Record of Appeal and the submissions filed by the parties herein and authorities relied on and would as usual state as follows that it is now settled law that the duty of the first appellate court is to re-evaluate the evidence in the subordinate court both on points of law and facts and come up with its own findings and conclusions as was held in Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, where it was stated that:-“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way. 20.The Judgment of the trial court was that the appellant’s suit before the trial court was dismissed with costs after the court found that the appellant herein failed to prove as required of him, that there was unfair termination of his service by the respondents. According to the trial court, the appellant was employed on a fixed term contract and that the same had expired at the time of the alleged termination. The trial court further dismissed the claim for special damages. The Appellant being aggrieved by the finding of the trial Court lodged this appeal on grounds as set out the memorandum of appeal, main grounds of which are set out above. The court however in order to determine this appeal will reduce the grounds of appeal to three main issues:a.Whether the trial court erred in finding that the appellant had failed to prove that the respondents unfairly terminated his service. That is to say whether the appellant was on a fixed term contract at the time of termination and the same had expired in terms of the contract.b.If not; whether the termination was on account of redundancy yet the respondent failed to comply with the provisions of section 40 of the Employment Act regarding declaration of redundancy.c.As a corollary, if the court finds that the appellant was improperly terminated, is he entitled to any or all of the claims pleaded in the statement of claim presented before the trial court?d.What are the appropriate orders to make as a result of the findings of the Court on the issues above? Whether the trial court erred in finding that the appellant had failed to prove that the respondents unfairly terminated his service. That is to say whether the appellant was on a fixed term contract at the time of termination and the same had expired in terms of the contract. 21.The letter of appointment dated 15th May, 2000 found at page 59 does not overtly mention the duration of the contract. The duration can only be gleaned at 5(d) of the contract where it is provided:“on the termination of this agreement, at the conclusion of 52 weeks, the employee shall be paid a terminal benefit equivalent to twenty-four working days basic salary and house allowance less any deductions…”It is however common ground that the appellant was on a contract for one year. The issue in dispute was whether at the time of issuance of the termination letter, the contract had expired by effluxion of time. Taking 15th May, 2000 as the commencement date of the contract, 52 weeks (1 year) later would be on or about 16th May, 2001. It was not in dispute that the appellant did not exit his employment on or about that date. He was instead issued with a termination letter dated 7th November, 2019. That means the appellant worked for the respondent some 17 years, 5.5 months approximately after the expiry of his contract. It is however noteworthy that the letter of termination dated 7th November, 2019, makes no reference to the expiry of the contract dated 15th May, 2000 as the reason for termination but to the fact that there were overwhelming incidences at Family Bank which led to the termination of services at Family Bank. 22.It is conceded as caselaw demonstrates, that there is no obligation to renew a fixed term contract (hereinafter referred to as FTC) but failure to discharge an employee under FTC and or continuing to receive services of such employee in the same position they were hired under FTC, creats a legitimate expectation that the contract has been renewed for a similar period and subsequently thereafter. In this particular case, it would be unreasonable to invoke the provisions of FTC entered into some 17 years ago and claim it had expired and that the appellant who continued to offer his services for such a long time had no legitimate expectation that it was renewed. To hold as such would be a travesty of justice. As already observed, the contract was not clear in its duration and this could only be gleaned from clause 5(d) of the contract which concerned remuneration, where it provided that on the termination of the agreement, at the conclusion of 52 weeks, the employee would be paid a terminal benefit equivalent to twenty-four working days basic salary and house allowance less any deductions. From the foregoing one can reasonably conclude that the parties never intended to create a FTC but an open ended one besides, if the intention was to enter into one, then the same was presumed renewed on similar terms for the period the appellant continued to serve the respondent at the position he was hired or any other promotion he may have been awarded. From the foregoing, the trial court erred in finding that the appellant’s termination of service was lawful. This ground of appeal therefore succeeds. 23.Having found that the claimant’s FTC did regularly end. That is to say, the claimant continued to serve for over 17 years after the alleged FTC and further noting that the contract itself was not clear on its duration, the issue then is whether in terminating the appellant’s contract, the respondent adhered to the provisions of sections 41, 43, 45 and 47 read together. That is to say did the respondent have substantive reasons for terminating the appellant’s service and if so, was the appellant accorded procedural processes contemplated by the above cited sections of the law? 24.The letter of termination dated 7th November, 2019 gave the appellant one notice of termination and the reason for termination was given as the frequent cases of theft at Family Bank which led to termination of the services contract of the respondent. The letter while alleging the incidents were within the knowledge of the appellant and the general public, did not implicate the appellant in any of them. It was therefore an issue over which the appellant was not in control, however led to loss of his employment by the respondent. This reasonably fits the definition of redundancy. Under section 2 of the Employment Act, redundancy is defined as:“redundancy" means the loss of employment, occupation, job or career by involuntary means through no fault of an employee, involving termination of employment at the initiative of the employer, where the services of an employee are superfluous and the practices commonly known as abolition of office, job or occupation and loss of employment”This therefore meant that the respondent had to comply with the provisions of section 40 of the Employment Act concerning termination of employment on account of redundancy. From the evidence on record and the approach taken by the respondent that the termination was on account of effluxion of the FTC, it reasonable to conclude that the appellant was never accorded the processes contemplated under section 40 of the Act. A termination of employment on account of redundancy contrary to the provisions of section 40 is considered by the Court as an unfair termination of service within the meaning of section 45 of the Act and the Court so finds in respect of this appeal. This ground of appeal also succeeds. 25.Having so found, is the appellant to entitled to any or all of the remedies sought in the statement of claim? It is important to note at the onset that the matter before the trial court proceeded undefended since the appellant did not attend the trial but proceeded to file submissions and participate in this appeal. However the absence of the appellant at the trial did not lessen the burden of proof cast upon the appellant to prove his case as provided under section 47(5) of the Employment Act. 26.In the statement of claim the claimant prayed for the following:i.Maximum compensation for unfair terminationii.One month’s salary in lieu of noticeiii.Leave not takeniv.House allowancev.Overtimevi.Public holidays’ workvii.Service gratuityviii.Special damages.Prayers (i) to (vii) are statutory and save for prayer (i) which is discretionary on the court and awarded in consideration of the reasons and circumstances of the termination, the other prayers are awardable as of right and it is the responsibility of the employer to dispute them whenever claimed by an employee since it is the employer’s duty under section 74 of the Act to keep employment records. This claim were not defended in the lower court hence the trial court erred in not awarding them even if that court took the view that the employment terminated by effluxion of time. They are therefore allowed as prayed. 27.Concerning maximum compensation of 12 months’ salary, this is usually awarded sparingly and in circumstances where the reason for termination is egregious and an employee had no hand in the termination. In this case, the appellant’s service was terminated by a third party, Family Bank, out of concern over frequent theft in its premises. No evidence was presented before the trial court or in this appeal that the respondent was responsible or collusive in the thefts. In the circumstances the respondent was not entirely to blame for the sudden end of the appellant’s employment. An award of seven months’ salary for unfair termination of service would be reasonable in the circumstances. The trial court was right in not awarding special damages since these must always be specifically pleaded and strictly proved. The Court has looked at the statement of claim and the evidence in support of the claim and noted that special damages were not specifically pleaded and not proved at the trial. 28.In conclusion the appeal succeeds as follows:i.The order of the trial court dismissing the suit is hereby set aside and replaced with an order that the appellant’s service was unfairly terminated on account of redundancy.ii.The Court awards the claimant the sum of Kshs. 134,442/- as equivalent of seven months’ salary as compensation for unfair termination.iii.The Court allows prayers (ii), (iii),(iv) (v) (vi) and (vii) set out above and as quantified in the statement of claim. That is to say the consolidated sum of Kshs. 2,159,165/-iv.Costs of this appeal and costs in the trial Court.v.Total (ii) + (iii)= 2,293,607/- 29.It is so ordered. DATED AT NAIROBI THIS 29TH DAY OF MAY, 2026DELIVERED VIRTUALLY THIS 29TH DAY OF MAY, 2026ABUODHA NELSON JORUMPRESIDING JUDGE - APPEALS DIVISION