1. Contending that at all material times he was an employee of the Respondent, whose employment was unfairly terminated, the Appellant sued the Respondent in the above-mentioned matter, seeking the following remedies;
a. Payment of her terminal and contractual dues amounting to Kshs.687,921.54/=.
b. Costs and Interests of this suit.
c. Any other relief that the Court may deem fit to grant.
2. Tabulated as;
a. One month's pay in lieu of notice, KShs. 16,712.79
b. House allowance 15/100 x 16,712.79 x 58 months
KShs 145,401.27
c. Unpaid public holidays worked 5 x 557x5 KShs. 13,925.00
d. Unpaid leave days 21×557×5years KShs. 58,485.00
e. Compensation for unlawful termination 16,712.79x12 KShs. 200,553.48
f. Unpaid overtime (121.30 x 1hr x 30 days x 58 months. KShs. 211,062.00
g. Service pay KShs. 16,712.79/2 x 5 KShs. 41,782.00
TOTAL Kshs.687,921.54
3. The Respondent contested the Appellant’s case in the Amended Statement of Response dated 5th May 2023. The Respondent’s position was that the Appellant was initially employed by Riley Services Limited until July 2017, and thereafter employed by the Respondent on annual fixed-term contracts commencing in August 2017 as a security guard. The Respondent asserted that the termination was due to the Appellant’s gross misconduct, and denied the Appellant’s cause of action and entitlement to the relief sought.
Appellant’s case in the lower court
4. The Appellant’s case was that he had been employed by the Respondent, Riley Falcon Security Services Limited, as a security guard from 26th June 2015 until 13th April 2020, when his employment was allegedly terminated unlawfully and without due process.
5. He stated that he had been assigned to various sites in Mombasa, with his last posting at the Kenya Power and Lighting Company Limited premises, where he was in charge of the basement car park. According to the Appellant, on 5th April 2020, the Respondent’s supervisor, Mr Evans Morara, visited the workplace and requested water to wash his uniform, which he later left to dry near the main entrance.
6. After the alleged damage to the uniform, Mr. Morara called the Appellant and his colleagues, instructing them to report to the Respondent’s Nyali office on April 6, 2020. The Appellant explained that upon arrival, they were questioned by Mr. Morara and Branch Manager Mr. Cheruiyot and asked to provide statements. Following this, they were suspended and told to return on April 13, 2020.
7. The Appellant further stated that when he returned to the Respondent’s office on 13th April 2020, Mr Cheruiyot and Mr Morara instructed him to surrender the Respondent’s uniform and other property.
8. When he asked why he had to do so, he was told his services were no longer needed and he was dismissed. He asserted that the dismissal was without valid reason, notice, or a proper disciplinary process.
9. He maintained that he had worked diligently for the Respondent for over five years and earned a basic salary of Kshs. 16,712.79. During his employment, he was never permitted to take annual leave, statutory contributions were not remitted, and he was not issued with a certificate of service upon termination.
Respondent’s case in the lower court
11. The Respondent’s case was that the Appellant was at all material times its employee as a security guard. Initially, he was employed by Riley Services Limited, a separate legal entity, until July 2017.
12. According to the Respondent, the Appellant was thereafter employed by the Respondent on annual fixed-term contracts from August 2017, with each contract distinct and constituting a separate employment relationship.
13. The Respondent contended that the Appellant committed gross misconduct while on duty by failing to detect or prevent damage to company property, namely the uniform belonging to his supervisor, Evans Morara.
14. It was the Respondent’s position that, as a security guard, the Appellant was required to devote full attention to his duties, conduct patrols, and prevent damage to company property.
15. The Respondent stated that the Appellant’s explanation that he was not stationed at the location where the damage occurred was unsatisfactory, as he was expected to patrol the relevant areas, including the rear entrance and the basement car park.
16. The Respondent further maintained that the Appellant underwent a lawful disciplinary process prior to dismissal. It stated that the Appellant wrote a statement, received a show-cause letter, responded to it in writing, attended a disciplinary hearing, and that the minutes of the hearing were recorded. The disciplinary panel found his explanation unsatisfactory and recommended summary dismissal. The Respondent therefore denied that the termination was unlawful or unprocedural.
17. On the monetary claims, the Respondent denied that the Claimant’s monthly pay at the time of termination was Kshs. 16,712.79.
18. It also denied the claims for house allowance, public holidays, annual leave, overtime and service pay, stating that the monthly salary was inclusive of house allowance and was paid at all material times. Additionally, the Appellant utilised all his leave days and/or cashed them; any overtime worked was paid, and NSSF contributions were deducted and remitted.
19. The Respondent also contended that some of the monetary claims were time-barred under section 90 of the Employment Act and were unmeritorious afterthoughts.
Judgment of the lower court
24. After hearing the parties on their respective cases, and considering their evidence and submissions, the trial Court found that the Appellant’s employment was fairly terminated. The termination was in adherence to the dictates of procedural fairness and grounded on the Appellant’s gross misconduct. Additionally, the Court, for various reasons, refused to grant any of the remedies sought by the Appellant.
Appeal
27. Aggrieved by the entire Judgment, the Appellant appeals against it on the following grounds.
1. THAT the learned Magistrate erred in law and fact in finding that the Respondent followed due process before terminating the Appellant's employment.
2. THAT the learned magistrate erred in law and fact in failing to recognise that termination of the Appellant's employment ought to be procedurally and substantively fair.
3. THAT the learned magistrate failed to appreciate that the Claimant's duties and responsibilities were not guarding the Supervisor's uniform, but rather providing security services at the basement of Electricity House.
4. THAT the learned magistrate erred in law and fact in failing to recognise that the Respondent's supervisor was at fault for washing and hanging his clothes at the place of work, while uniforms were supposed to be washed at his home.
5. THAT the learned magistrate erred in fact and law by failing to recognise that the destruction of the Respondent's supervisor's uniform happened at the rear end of the electricity house, yet the Appellant was stained at the basement of the electricity house.
6. THAT learned magistrate misdirected himself on the law and fact by failing to recognise that the Appellant did not call any expert witness to prove that the Appellant signed the Notice to show cause, and minutes, hence the availability of the Claimant in the disciplinary meeting was not proved.
7. THAT the learned magistrate erred in law and fact in arriving at the conclusion that the Claimant was afforded adequate time and facilities to prepare and mount a defence, yet the Appellant did not attend any disciplinary meeting.
8. THAT the learned magistrate erred in law and fact on relying on the Respondent's witness, known as ELIJAH CHERUIYOT, who claimed that he was familiar with the Appellant's signatures and handwriting, yet the same witness was not an expert witness.
9. THAT the learned Magistrate erred in law and fact in shifting the burden of proof to the Appellant, who had established a prima facie case that he was unlawfully dismissed from employment.
10. THAT the learned trial Magistrate proceeded on wrong principles of law on finding that the Claimant was fairly dismissed from work despite overwhelming evidence to the contrary.
11. THAT the learned trial Magistrate disregarded the overwhelming evidence tendered by the Appellant to prove that he was entitled to terminal dues upon unlawful dismissal from work.
12. THAT the Learned Magistrate disregarded the submissions made by the Appellant's counsel on both the law and the facts.
Appellant’s submissions
28. The Appellant’s Counsel submitted that an employer can dismiss an employee only in the manner permitted under the Employment Act. Sections 43 and 45 of the Employment Act place the burden on the employer to prove the justification for termination. In default, a presumption arises that the termination was unlawful. The Respondent did not place any evidence before the learned trial Magistrate to demonstrate that the Appellant destroyed the Supervisor’s uniforms. In any event, the Respondent’s witness testified that it was not in order for the Supervisor to wash and hang the uniform as he did.
29. Additionally, the law places a duty on the employer to prove that the process leading to the termination of an employee’s employment was procedurally fair as contemplated under Section 41 of the Employment Act. In the instant case, the termination of the Appellant’s employment was without adherence to the dictates of procedural fairness. The show -cause letter purportedly issued to the Appellant was denied. Consequently, it became a duty upon the Respondent to prove service, a thing that it did not do. It failed to call an expert witness to prove the assertion that the receipt signature on the letter was the Appellant’s. The termination was procedurally unfair.
30. On remedies, the Appellant submitted that, having been unfairly dismissed, he was entitled to one month’s salary in lieu of notice under sections 35 and 36 of the Employment Act, house allowance under section 31, unpaid public holidays, unpaid leave, compensation equivalent to 12 months’ salary, unpaid overtime, service pay, costs and interest. Respondent's Submissions
35. The Respondent’s Counsel submitted that the trial Court did not err in finding that the Appellant’s termination was substantively and procedurally fair and that he was not entitled to the remedies sought. On the day the Supervisor’s uniform was cut into pieces, the Appellant and two other guards were on duty. As there were no outsiders on the premises, the Respondent genuinely believed that the Appellant and his two colleagues were involved in destroying the uniform.
36. According to the Respondent, the Appellant failed to exercise the vigilance expected of a security guard, failed to patrol the area, and failed to detect or prevent damage to company property, thereby committing gross misconduct within the meaning of section 44(4)(c) of the Employment Act. The Respondent therefore argued that the trial court properly found that there was a valid reason for summary dismissal.
37. On procedural fairness, the Respondent’s Counsel submitted that the Appellant’s denial of having been taken through a disciplinary process was on shaky ground. From the material placed before the trial Magistrate, it is clearly discernible that the Appellant admitted that he recorded a statement, was issued with a show cause letter, responded to it in writing, was invited to a disciplinary hearing, attended the hearing, and was thereafter issued with a summary dismissal letter.
38. The Respondent further submitted that the process complied with section 41 of the Employment Act and that the Appellant did not appeal the dismissal despite being notified of his right to appeal.
39. In response to the Appellant’s denial of his signatures, the Respondent relied on section 50 of the Evidence Act and argued that DW1 was competent to testify to the Appellant’s handwriting and signature, having handled the Appellant’s personal file and received documents written or signed by him.
40. Regarding remedies, the Respondent submitted that the Appellant was initially employed by Riley Services Limited until July 2017 and only later by Riley Falcon Security Services Limited from August 2017. Accordingly, any claims arising before August 2017 were against a separate legal entity that was not sued. It opposed compensation and notice pay on the grounds that the dismissal was lawful and justified by gross misconduct under sections 44(3) and 44(4) of the Employment Act. It also submitted that the claims for house allowance, overtime, public holidays, leave pay, and service pay lacked merit, as the pay slips, P9 forms, leave documents, and NSSF deductions showed that the Appellant had been paid or had received the relevant benefits. The Respondent further argued that claims such as house allowance and overtime were time-barred as continuing breaches under section 90 of the Employment Act.
41. The Respondent relied on John Mugalla Mwaduma versus Braeburn Schools t/a Braeburn International School Mombasa (2015) eKLR to support the submissions on limitation of time on continuing injury claims under section 89 of the Employment Act; KUDHEIHA Workers versus Charles Waithaka Goko t/a Apple Bees Pub and Restaurant (2013) eKLR to emphasise the need for parties to properly plead and prove overtime claims; and Alexander Mutisya Muya & 7 Others versus Jona Pestcon Limited (2022) eKLR to support the proposition that service pay is not payable where an employee was a member of NSSF. The Respondent therefore urged the court to dismiss the appeal with costs.
Analysis and determination
41. As this is a first appeal, this Court is required to reconsider and re-evaluate the evidence placed before the trial court and to arrive at its own independent conclusion, bearing in mind that it did not have the benefit of seeing and hearing the witnesses testify.
42. I have carefully considered the judgment of the lower Court, the grounds of appeal and the submissions by the parties. The issues that arise for determination are whether the trial court erred in finding that the Appellant’s termination was substantively justified; whether the Respondent complied with the requirements of procedural fairness; and whether the Appellant was entitled to the reliefs sought.
43. Before I consider the issues identified for determination, I find it imperative to note that the Appellant asserted that he first entered into the employment of the Respondent on 26th June, 2015, whereas the Respondent contended that, contrary to the Appellant’s assertion, he first joined its workforce under a fixed-term contract entered into by the parties in August 2017. There would subsequently be annual fixed-term contracts.
44. Whereas the Respondent placed contracts of employment to support this, the Appellant did not tender any contract or any documentary evidence that could provide a basis for any Court to disbelieve the Respondent’s position. As a result, I find the Appellant’s position persuasive that the Appellant first came into the employment of the Respondent on the date and in the manner above-stated.
45. It bears repeating that Section 45 of the Employment Act prohibits employers from unfairly terminating an employee’s employment. Under the provision, a termination is unfair if the decision to terminate was made without a valid and fair reason, or if the process leading to that decision was not procedurally fair. See. In Pius Machafu Isindu v Lavington Security Guards Limited [2014] KEIC 121 (KLR).
46. The Respondent’s reason for terminating the Appellant was that, while on duty as a security guard at the Kenya Power premises, he failed to detect or prevent damage to the uniform belonging to his supervisor, Evans Morara. The Appellant’s Counsel has submitted that the Respondent did not place before the trial Court evidence demonstrating that the Appellant destroyed the uniform. The question at trial, therefore, is not whether the Appellant destroyed the uniform.
47. This Court notes the Appellant’s very casual argument that his duty was to provide security services at the premises and not to guard the supervisor’s washed uniform.
48. Section 43 of the Employment Act, as acknowledged by the trial Court, imposes a legal obligation on the employer to substantiate the grounds for termination. Pursuant to this provision, the reason for termination must be one that the employer genuinely and reasonably believed to exist.
49. I have carefully considered the evidence placed before the lower court by the Respondent and by the Appellant, and hold that any reasonable employer could terminate the Appellant on the grounds relied on by the Respondent. The reason was valid.
50. On procedural fairness, the Appellant’s case was that he was not issued with a show cause letter, was not invited to a disciplinary hearing, did not attend any disciplinary hearing, and only saw the alleged termination letter when it was filed in court. The Respondent, on the other hand, maintained that the Appellant wrote a statement, was issued with a notice to show cause, responded to it, was invited to a disciplinary hearing, attended the hearing, and that minutes were taken. DW1 also testified that he was familiar with the Appellant’s handwriting and signature, having handled his personnel file and received documents written or signed by him in the ordinary course of work.
51. The Appellant questioned the validity of the signatures on the disciplinary documents and contended that the Respondent should have engaged a forensic handwriting expert. Nevertheless, the law does not mandate expert evidence as the exclusive method for proving the authenticity of handwriting or signatures.
52. In the upshot, I find no sufficient basis to disturb the trial Court’s finding that the Respondent complied with the procedural requirements under section 41 of the Employment Act.
53. The Appellant sought one month’s salary in lieu of notice. However, having found that the termination stemmed from gross misconduct and that the Respondent had a valid basis for summary dismissal, the trial court was entitled to dismiss the claim for notice pay.
54. Under section 49 of the Employment Act, compensation for unfair termination is only awardable where the court finds that the termination was unfair. Since the trial court found that the termination was substantively and procedurally fair, and I have found no sufficient basis to interfere with that finding, the prayer for compensation was properly declined.
55. Regarding house allowance, overtime, public holidays, leave and service pay, the trial court considered the documentary evidence produced by the Respondent, including pay slips and leave records. The Appellant also admitted, on cross-examination, that his payslip reflected overtime, house allowance, and NSSF and NHIF remittances. The trial court cannot be faulted for finding that the claims for house allowance, overtime, public holidays and service pay were not proved.
56. Similarly, the Respondent produced leave documents in support of its position that the Appellant either took leave or was paid in respect of leave. The Appellant did not place before the court sufficient evidence to displace the Respondent’s documentary evidence on this assertion.
57. The Appellant also claimed service pay on the basis that statutory contributions had not been remitted. However, the pay slips showed deductions for NSSF. In the absence of contrary evidence from the Appellant, such as an NSSF statement demonstrating non-remittance, the trial court properly rejected the claim for service pay.
58. By reason of the foregoing premises, I come to the inescapable conclusion that the Appellant’s appeal herein lacks merit. It is hereby dismissed with costs.
Read, Signed and Delivered this 28th Day of May 2026.