The appeal proceeded in the absence of the respondent, who was served but did not attend. There are no written submissions by the respondent in this appeal.
The appeal arises from the judgment delivered on 10 April 2025 in Mombasa CMELRC No. E321 of 2022. The appellant is seeking that the judgment be set aside, and the awards be reassessed in favour of the appellant.
The background to the appeal is a claim filed by the respondent before the trial court. His case was that he was employed by the appellant as a night guard from March 2021 until 1 March 2023. His wage was Ksh. 11,356 per month. He had not been paid for 5 months. He claimed that no Notice or reasons were given before the termination of employment. He was underpaid, contrary to the Wage Guidelines, which required a wage of Ksh. 15,141.95. No house allowance was paid for the overtime worked from 6 pm to 6 am. He thus claimed the following:
a) Salary for 5 months, December 2021 to April 2022, Ksh. 56,780.
b) Underpayment of wages Ksh. 15,141.95 – 11,356 for 12 months Ksh. 45,432.40
c) House allowance for 12 months Ksh. 20,440.80
d) Overtime of 195 hours Ksh. 117,403.57
e) 12 months' compensation Ksh. 136,272.
f) Unremitted NSSF deductions Ksh. 10,000.
g) Costs of the suit.
In reply, the appellant admitted the respondent was an employee and remains an employee. The claim that there has been non-payment for 5 months is denied, as employment continues with full payment. There is no underpayment of wages or house allowance as alleged. Continued employment is proof of payment of wages. The claims made are without merit and should be dismissed with costs.
The learned magistrate heard the parties and, in judgment, held that there was unfair termination of employment. There was an admission of an unpaid salary of Ksh. 56,780, and the claim for underpayment was not contested at Ksh. 45,431.40. The application had failed to produce work records and to pay a house allowance on one occasion and was therefore awarded Ksh. 20,440.80 and overtime awarded at Ksh. 117,403with costs plus interests. The total award is Ksh. 240.055.
Aggrieved by the judgment, the appellant argues that the learned magistrate erred in law and fact in awarding the claims as pleaded, on the basis of an admission, unpaid salary for 5 months, and the underpayment due to the non-production of work records. There was no proof of any overtime worked or of any unpaid house allowance. The trial court failed to appreciate that employment between the parties subsists, and the respondent has since been paid in full.
The appellant submitted that the respondent's initial employment was lawfully terminated following a redundancy notice issued from 1 to 30 March 2023. The awards in:
Underpayment;
House allowance;
Salary for 5 months; and
Overtime;
These were not all justified.
Despite filing his claim, the respondent continued to work for the appellant. His notice of redundancy ended on 30 March 2023, and he was offered subsequent employment. This was confirmed in evidence. The appellant lost a contract it held with a third party and issued a month's notice to the respondent. Notice issued to the labour officer on 1 March 2023.
In a redundancy, the employer is justified in terminating employment for operational reasons, subject to the issuance of notice, which was done in this case. In the case of Kenya Pilots Association v Kenya Airways Limited, Cause No. 94 of 1993, the court held that redundancy may arise for many reasons, including reorganization and economic changes. In this case, the appellant lost a contract under which the respondent was employed.
The appellant submitted that it had since paid the respondent the wage arrears; that there was no underpayment; that the house allowances were included in the wage; and that no overtime was worked. The appeal should be allowed with costs.
The respondent did not attend these proceedings.
Determination
This being a first appeal, the court is allowed to review the record, reassess the findings and make its conclusion. However, keep in mind that the trial court had the opportunity to take evidence and see the witnesses.
As noted above, the respondent did not attend these proceedings.
The appeal is that the learned magistrate erred in finding that the claim for wage arrears was admitted and that, due to the non-production of work records, the claims for underpayments, house allowance, and overtime were justified and, in error, awarded costs and interest.
The appellant has further emphasised that the respondent is currently employed by the respondent and, as such, cannot claim wage arrears that have since been paid.
As emphasised by the learned magistrate, the employer has the duty to produce work records pursuant to section 10(6) and (7) and 74 of the Employment Act. Once the employer is a party to an employment dispute, the law places the duty to produce upon the employer, as held in Kayaa v Tushirikiane Enterprises Limited [2024] KEELRC 1487 (KLR) and Karuga v Taneem Properties & 4 others [2025] KEELRC 3542 (KLR).
In this case, the appellant filed various work records, including bank statements, salary deposit slips, and checking lists.
The records confirm that the application paid the respondent a wage of Ksh. 11,300 plus Ksh. 5,300 per month. However, the payment of Ksh.5, 300 is inconsistent. The appellant does not address why this payment was made. Thus, the gross of Ksh. 11,300 per month was paid. The payment is through Tekalu Limited.
Payment statements (Pay slips) are also issued under Tekalu Logistics Limited. The payment is made through the respondent’s bank.
The other work records fled at the checklists. This confirms the respondent was a security guard on the night shift.
A night guard working in Mombasa in March 2021 earned Ksh. 15,141.95 until May 2022, when the wage changed to KSh. 16,959 per month as a basic wage.
Under section 49(2) of the Act, the last gross wage paid is used to assess terminal dues.
On the wage due at Ksh. 16,959, the house allowance at 15% is Ksh. 2,543.85 the gross is Ksh. 19,502.85 inclusive of house allowance. Less wage paid to Ksh. 11,300, the underpayment is Ksh. 8,202.85 inclusive of the house allowance.
For the 10 months preceding termination of employment, an underpayment of Ksh 82,028.50, inclusive of the house allowance, is due.
On the wage earned, the respondent testified that he is indeed back in the service of the appellant. However, no record has been submitted for the claimed paid wage arrears of Ksh. 56,780. This is due under section 18 of the Act for work done.
On the issue of underpayments, save to urge the court that there were checks in shifts, the respondent's evidence, who worked from 6 pm to 6 am, is not challenged in any material way. Hours of work and overtime are provided for in the Regulation of Wages (Protective Security Services Order, 1998. The normal working week for all employees, including day and night guards, is 52 hours spread over six days.
The respondent's claim covers the period from 1 May 2022 to 30 April 2022. This is in the negative. This component was not addressed in the Amended Memorandum of Claim.
Where employment was terminated with effect from 30 March 2023, such a claim for overtime pay should have been addressed within 12 months pursuant to section 89 of the Act as a continuing injury. The claim, dating back to May 2022 or April 2022, is hereby declined as conflated.
Regarding the reasons for termination of employment, the appellant notified the respondent, through a notice dated 1 March 2023, that its contract with the third party had been terminated. He had 30 days' notice ending 30 March 2023. Such is allowed under sections 35, 41 and 40 of the Act. Where there is an operational reason leading to termination of employment, notice having issued giving the reasons, under section 40 of the act, the only matter for the appellant to address is payment of terminal dues. In Cargill Kenya Limited v Mwaka & 3 others [2021] KECA 115 (KLR), the court held that upon a redundancy, the employer can issue a notice period or pay instead of notice.
In this case, notice was served.
Redundancy is a lawful and legitimate mode of termination of employment. The respondent's assertions that he had no notice or reasons given are not correct, given the notice filed in court, which was not challenged.
There was a sufficient cause for the termination of employment.
On costs, the employment relationship subsists. Each party to bear its costs.
Accordingly, judgment in Mombasa CMELRC No. E321 of 2022 is reviewed with the following awards:
a) Salary arrears Ksh. 56,780.
b) Underpayments, including house allowance Ksh. 82,028.50.
c) Each party to bear its costs for the appeal and trial court proceedings.
Delivered in open court at Mombasa on this 26th day of February 2026.
M. MBARŨ
JUDGE
In the presence of:
Court assistant: Omar
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