Hatari Security Guards Limited v Oduor (Appeal E043 of 2024) [2025] KEELRC 1112 (KLR) (3 April 2025) (Judgment)

Key Facts

Issues

• The court reviewed whether the magistrate correctly awarded rest days not taken by the respondent, considering the employer's failure to produce the necessary employment records (OB) and the absence of a duty roster to verify the respondent's work schedule.
• The court determined if the magistrate's award of costs to the respondent was valid despite the absence of a formal demand letter issued to the employer before filing the suit.
• The court examined if the magistrate erred in awarding gratuity to the respondent who voluntarily resigned, despite Regulation 17(2) of the Regulation of Wages (Protective Security Services) Order, 1998, which excludes gratuity for voluntary termination.
• The court assessed whether the magistrate's calculation of leave days was correct after accounting for a prior payment of Kshs. 14,030/- by the employer, reducing the awarded amount to Kshs. 24,976/-.

Holdings

• The court upheld the magistrate's award of half the costs to the Respondent, finding no error in the discretion exercised, as the Respondent partially succeeded in the claim.
• The court set aside the gratuity award, holding that the magistrate erred in awarding gratuity as the Respondent voluntarily resigned and Regulation 17(2) of the Regulation of Wages (Protective Security Services) Order, 1998 disqualifies gratuity in such cases.
• The court upheld the magistrate's finding that the Respondent was entitled to rest day payments, noting the Appellant failed to provide necessary records like the duty roster or OB register to dispute the claim.
• The court upheld the magistrate's leave day payment award, as the Appellant did not provide sufficient evidence to challenge the calculation of leave days after accounting for prior payments.

Remedies

• The court upheld the leave days award, confirming the Respondent was entitled to the amount after accounting for prior payments.
• The court upheld the award for rest days, as the Appellant failed to provide evidence proving the Respondent had rest days not taken.
• The court decided there would be no order for costs on the appeal, meaning each party bears their own expenses.
• The court set aside the gratuity award, ruling that the Respondent did not meet the criteria under Regulation 17(2) of the Regulation of Wages Order.

Monetary Damages

Legal Principles

• The employer had the burden to provide employment records (e.g., duty rosters, OB) to substantiate claims about rest days and leave, which it failed to do. The court upheld the Magistrate's findings due to the absence of such evidence.
• The appellate court applied a standard of review (e.g., Selle v Associated Motor Boat Co Ltd) to determine the trial court's decision on rest days and leave was not unreasonable, as the Appellant failed to meet its evidentiary burden.
• The court presumed the Respondent was not entitled to gratuity under Regulation 17(2) of the Regulation of Wages (Protective Security Services) Order, 1998, as termination was voluntary, and statutory provisions do not mandate gratuity in such cases.
• The Magistrate exercised discretion in awarding costs, allocating half to the Respondent due to partial success. The appellate court affirmed this discretion, noting no error in the decision.

Precedent Name

• Fidelis Mwanyumba v Total Security Surveillance
• Mburu v Gillys Security Investigations Services Ltd
• Joseph Odour Anode v Kenya Red Cross Society
• Selle & another v Associated Motor Boat Company Ltd & others

Cited Statute

• Employment Act
• Regulation of Wages (Protective Security Services) Order, 1998

Judge Name

Passage Text

• As the Appellant has only succeeded in having the sum awarded in gratuity set aside, the Appeal will only be allowed to that extent. Since this is a very minor and insignificant relief from the decree and judgment of the Learned Magistrate and considering that a substantial aspect of the Appeal was resolved by the parties, there shall be no order as to costs on the appeal, meaning each party will bear their own costs for the Appeal.
• The Regulation of Wages Order (Protective Security Services) (Amendment) Orders do not make provision for gratuity at any level of the protective services. In this case there would have been no basis to award the same and I hold that the Learned Magistrate fell in error in doing so.
• The Appellant did not avail the record – OB which recorded the days the Respondent attended for duty. No duty roster was availed and the only record availed in respect of rest was the Appellant's leave approval for leave undertaken in 2020. The Appellant was the employer and leave records are in the custody of an employer who complies with section 74 of the Employment Act. In the absence of any contrary evidence and given the determination which was weighed and measured, I will not disturb the findings by the Learned Magistrate in relation to this aspect of the Appeal.