Nyakinywa v Athi Water Works Development Agency & another (Appeal E106 of 2024) [2026] KEELRC 1530 (KLR) (29 May 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **APPEALS DIVISION** **APPEAL NO. E106 OF 2024** **ANTHONY NDUGU NYAKINYWA……………………………...APPELLANT** **-VERSUS-** **ATHI WATER WORKS DEVELOPMENT AGENCY…1ST RESPONDENT** **ATKINS CONSULTING ENGINEERING LIMITED….2ND RESPONDENT** **(Being an appeal from the Judgment of the Resident Magistrate Court at Nairobi (Honourable Ng’ang’a Nellieanne Wambui) delivered on 8th day of March, 2024 in CMELRC No. 1 of 2020*)*** **JUDGMENT** 1. Through the Memorandum of Appeal dated 22nd March, 2024, the Appellant appeals against whole of the Judgment of Honourable Honourable Ng’ang’a Nellieanne Wambui) delivered on 8th day of March, 2024 in CMELRC No. 1 of 2020 on grounds inter alia: 2. That the learned trial Magistrate erred in law and in fact by dismissing the claimant’s entire case with cost to the respondents. 3. The learned trial Magistrate erred in law and in fact by failing to recognize that she lacked jurisdiction to handle employment cases, which is supposed to be handled by the judicial officer of the rank of senior resident magistrate. 4. That the learned trial Magistrate erred in law and in fact by failing to analyze and determine each particular claim independently and give reason why the same cannot be awarded to the claimant. 5. That the learned trial Magistrate erred in law and in fact by failing to consider the oral evidence adduced in court and the documentary evidence and the submissions, by so doing arrived at erroneous decision whereby the claimant’s entire case was dismissed. 6. The learned trial Magistrate erred in law and in fact by believing on the evidence in the form of a letter dated 24th August served upon the appellant indication that the claimant’s services were terminated on 31st March 2020, without putting the respondent to strict proof why the letter was held up only to be served on 24th August 2020 the period which the claimant was still at work and had worked for 5 months without being paid his salary. 7. The Appellant prayed that the judgment by learned Magistrate delivered on 8th day of March, 2024 aside and replaced with the judgment of this honorable court and that the appeal be allowed as prayed by the appellant in the statement of claim filed before the trial court together with costs. 8. The Appeal was disposed of by written submissions. **APPELLANT’S SUBMISSIONS** 1. The Appellant’s Advocate, Ms Ondande submitted among others that the learned trial magistrate never analysed each of the demands of the appellant’s case against the respondent and among others the exhibits produced before the Court especially exhibit P9 form KRA Income Tax Department for PIN No. P051404997Q and employment PIN No. A009914881 was meant to prove that the respondent although had information from the appellant never remitted income returns to KRA. The reason why the remittance was not reflected. The statement only showed a different entity as remitting returns but this did not mean the appellant was not the respondent’s employee. 2. On jurisdiction counsel submitted that the learned trial court failed to recognize that she did not have jurisdiction in the matter since employment cases could only be entertained by Magistrates of the rank of SRM and above. When the case was heard the trial magistrate was an RM therefore lacked jurisdiction. Counsel therefor prayed that the case be heard *de novo* alternatively this Court consider and determine the claim as filed in the lower Court. 3. Counsel submitted that the trial court needed to determine the relationship between the appellant and the respondents and that the appellant was deployed by the 1st respondent to the 2nd respondent hence the trial court failed to determine who should be liable to pay the appellant. The appellant in the course of his work as the Inspector of Works was answerable to both the appellants which is why he sued both of them. 4. Ms. Ondande further submitted that the trial court erred in law and fact by failing to consider the oral and documentary evidence adduced in Court and the submissions and by so doing, she arrived at an erroneous decision. Counsel further submitted that the trial court failed to recognise that the appellant had worked for 5 months without being paid salary and that the burden was on the respondent to disprove the evidence tabled by before the court by the appellant. Further that the respondent allowed the appellant to continue working from the month of April, 2020 to August, 2020 without disclosing that he was terminated on 31st March, 2020. He continued discharging his duties at the same time demanding payment of his salary and that no explanation was given for the delayed salary. Upon enquiry, the appellant was shocked to learn that he was terminated on 31st March, 2020. 5. Counsel further submitted that the trial court erred in law and fact by believing the evidence in a dismissal letter dated 24th August, 2024 served upon the appellant indicating that his services were terminated on 31st March, 2020 without calling upon the respondent (sic) to answer why they held the letter until August, 2020 then serve it upon the appellant on 24th August, 2020. Ms. Ondande further submitted that the respondents never appeared in court to contradict the appellant’s evidence therefore whatever was raised in defence remained mere statements which was no evidence at all. 6. Counsel further contended that the trial court erred in law and in fact by not recognising that if the claimant’s service was terminated on 31st March, 2020, why was he not issued the letter of termination and supplied with a certificate of service. Further that no notice of termination was served upon the appellant and this was therefore a violation of section 35(1) (c) of the Employment Act. 7. In conclusion counsel submitted that this Court ought to find both the respondents liable to pay the appellant his terminal dues by setting aside the findings of the trial court and substituting it with its own award allowing the appeal. **RESPONDENT’S SUBMISSIONS** 1. The Respondent’s Advocates Mr. Muchai submitted among others that the trial court had jurisdiction in the matter since section 29(3) of the Employment and Labour Relations Court Act empowers the Chief Justice, through Gazette Notice No. 6024 of 2018 to designate certain Magistrates to preside over employment and labour relations disputes. The Gazette notice appointed all Magistrates of the rank of Senior Resident Magistrate and above as special Magistrates to hear and determine employment and labour relations cases within their jurisdiction provided the employee’s gross monthly pay did not exceed Kshs. 80,000/-. The appellant’s monthly salary was Kshs. 30,000/- hence the Court had jurisdiction.Counsel contended further that the appellant had not produced any evidence to the contrary that the trial Magistrate was not of the rank prescribed in the notice. 2. Regarding the issue whether the trial court properly applied the relevant provisions of the Employment Act and laid down termination procedure, Counsel submitted that the learned magistrate properly applied the law and properly held that the appellant’s case did not amount to unlawful termination. Counsel contended that section 41, 43 and 45 of the Act govern termination of employment but the said provisions were inapplicable where a fixed term contract ends on its own terms. In this respect counsel relied on the case *of Registered Trustees of the PCEA vs. Ruth Gathoni Ngotho Karuiki [2017] eKLR* where the Court of Appeal held that expiry of a fixed term contract by effluxion of time did not constitute unfair termination. 3. It was Mr. Muchai’s submission that the impugned judgment revealed that the learned Magistrate duly considered the evidence adduced by both parties. The trial court set out the documents filed by both parties and that the learned Magistrate made reference to the letter dated 2nd July, 2019 produced by the appellant and the letter dated 24th August, 2020 from the 1st respondent. The trial magistrate also considered the P9 forms and a receipt evidencing payment from China Henan International Cooperation Group Co. Limited, a company that appeared to be the appellant’s employer but was not made a party to the suit. On this basis, the trial court rightly concluded that the appellant failed to discharge the burden of proof on who his real employer was. 4. Concerning the duration of the employment, counsel stated that the duration was tied to the project as evidenced by a letter dated 2nd July, 2019 which expressly stated “with effect from 2nd July, 2019 for the entire project period”. Counsel therefore submitted that from the foregoing, it was clear that the trial Magistrate carefully considered both oral and documentary evidence and arrived at reasoned conclusion. In this respect, counsel relied on section 107 of the Evidence Act on the burden of proof and the case of *Alice Wanjiru Ruhiu v. Messiac Assembly of Yahweh [2021] KEHC 1309 (KLR)* where the court held that the claimant had prove the existence of an employment relationship and the alleged breach, failure to which the claim must fail. Counsel therefore concluded that the trial court was right in finding that the appellant had failed to discharge the burden of proof required in civil cases and dismissing the claim by the appellant. **DETERMINATION** 1. 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.”* 1. The Judgment of the trial court was that the Claimant’s suit 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. The Appellant being aggrieved by the finding of the trial Court lodged this appeal on grounds as set out the memorandum of appeal and as outlined above. In order to effectively determine this appeal, the court will reduce the ground of appeal to two main issues which it considers germane in determining the appeal. That is to say: 2. Whether the trial court had jurisdiction to hear and determine the claim herein 3. Whether the trial court erred in finding that the appellant had failed to prove that the respondents unfairly terminated his service. 4. As a corollary, what is the appropriate order to make on this appeal. **Whether the trial court had jurisdiction to hear and determine the claim herein.** 1. The ELRC is a specialized Court established by the ELRC Act pursuant to article 162(2) of the Constitution. In 2018 the then Chief Justice David Maraga in order to mitigate the acute shortage of ELRC judges, and as a stop gap measure, administratively through Gazette Notice No. 6024 of 2018 designated certain Magistrates to preside over employment and labour relations disputes. The Gazette notice appointed all Magistrates of the rank of Senior Resident Magistrate and above as special Magistrates to hear and determine employment and labour relations cases within their jurisdiction provided the employee’s gross monthly pay did not exceed Kshs. 80,000/-. 2. The judgment subject of this appeal, shows it was written, signed and delivered Nellieanne Ng’ang’a who described herself as Resident Magistrate. Further, the proceedings show the matter was heard to conclusion by her. Jurisdiction is an issue that goes to the competence of the Court to hear and determine a matter. In the case of *Owners of Motor Vessel “Lillian S” v. Caltex Oil (Kenya) Ltd Civil Appeal No. 50 of 1989-,* later popularly known as “The Lilian S” case, it was held per Nyarangi JA ( as he then was) that: “.. it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 1. Further in the case of **Samuel Kamau Macharia** **Vs** **KCB & 2 Others, Civil Application No. 2 of 2011** it was statedas follows: *“A Court's jurisdiction flows from either the Constitution or Legislation or both. Thus a Court of Law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by Law”* 1. The issue of jurisdiction must therefore be determined *in limine* either upon being raised by a party to the suit or the court acting on its own motion. I have carefully perused the record and noted that Mr. Muchai though participated in the trial up to conclusion, did not raise the issue of jurisdiction neither the court acting on its own motion. The issue then, would the judgment be considered a nullity in the circumstances? The Gazette Notice No. 6024 of 2018 was issued administratively and not as a subsidiary legislation. It is akin to practice directions issued from time to time by the Chief Justice to make for practice and administrative gaps in dispensing justice and may ultimately inform future legislation in the areas concerned. They therefore do not override the legislative jurisdiction conferred by an Act of Parliament. 2. Section 7 of the Magistrates’ Act 2015 in addition to conferring upon all Magistrate regardless of rank, civil jurisdiction, delimits the extent of monetary jurisdiction for various cadres of Magistracy. In the case of Resident Magistrates, the monetary jurisdiction is set at Kshs. 5 million. The Gazette Notice No. 6024 of 2018 was issued pursuant to section 29 of the Employment and Labour Relations Court Act whose underpinning principle is stated as access to justice. It reads: 29(1) The Court shall ensure reasonable, equitable and progressive access to the judicial services in all counties. (2) For purposes of subsection (1), the Chief Justice may designate a Judge in a county as a Judge for the purposes of this Act. *(3) The Chief Justice may, by notice in the Gazette, appoint certain magistrates to preside over cases involving employment and labour relations in respect of any area of the country.* (4) Subject to Article 169(2)(a) of the Constitution, the magistrates appointed under subsection (3) shall have jurisdiction and powers to handle—(a)disputes relating to offences defined in any Act of Parliament dealing with employment and labour relations; (b)any other dispute as may be designated in a *Gazette* notice by the Chief Justice on the advice of the Principal Judge. 1. Whereas the Chief Justice is given the discretion to appoint certain magistrates to preside over cases involving employment and labour relations in respect of any area of the country, such appointment does not override the statutory jurisdiction of a Magistrate conferred by the Magistrate’s Court’s Act. The fact that a Magistrate outside the purview of appointment as specified in Gazette Notice No. 6024 of 2018 does not invalidate the judgment rendered by such Magistrate. If it may be an issue at all then it might just be categorized as an administrative misstep which does not render such judgment invalid. It is in other words, somewhat an administrative bootstrap to make for limited access to justice in certain cases. In any event, Counsel did not raise the issue of jurisdiction before the trial court and would seem to be raising it for the first time on appeal. It is settled law that a party may explicitly or by conduct consent to jurisdiction over his person by entering appearance or by filing pleadings without raising the issue of jurisdiction *in limine.* Such a party is deemed in short to waive his objection to jurisdiction in the same way he can waive his objection in other matters. 2. The Court therefore does not find any merit on this ground of appeal and hereby dismisses the same. 3. On the issue whether the trial court erred in finding that the appellant had failed to prove that the respondents unfairly terminated his service. It is a legal requirement under section 47(5) of the Employment Act that in any claim for unfair termination, the evidentiary burden is on the employee to show that the termination was unfair and it is upon the employer to demonstrate that the termination was justified. 4. From the record, the matter started to proceed for hearing Hon. Ominde (CM) on 14th November, 2023 but was adjourned due to connectivity problems during the virtual hearing. On this date, counsel for the respondent stated that he intended to call three witnesses. The matter was reallocated for hearing before another Court on by Hon. Ominde who further directed that the evidence be taken afresh since the claimant’s call dropped. The matter came up once more on 27th February, 2021 before Hon. N. Ng’ang’a who heard it to conclusion and rendered the judgment subject of this appeal. It is noted that on the material day there was no appearance by the respondent yet the Court noted that the hearing date was allocated in the presence of both Counsel. The matter therefore proceeded for hearing *ex parte* and the court directed the claimant (appellant herein) to file submissions by 5th March, 2024. 5. In her judgment, the trial Court found that the appellant had failed to prove his claim and dismissed that same. I have perused through the record and just like the trial judge noted that the appellant’s claim was premised on an unclear letter allegedly dated 2nd June, 2019 from the 1st respondent instructing the 2nd respondent to incorporate the appellant in the supervision of the construction of Kiambu and Ruaka Water Supply Project with effect from 19th July, 2019 until the completion of the project. Though not found on record of appeal, the trial magistrate also made reference to a letter dated 24th August, 2020 informing the appellant that his service ended on 31st March, 2020 and asking him to make arrangements to exit the site and clear with the site engineer. 6. The trial Court further observed that the KRA form P9 for the year 2020 showed the appellant received a gross salary of Kshs. 35,386.06 per month and that the document showed the appellant was an employee of China Henan International Cooperation Group Company Limited. As observed these documents (the letter of 24th August, 2020 and the KRA form P9) were not contained in the record of Appeal. The Bank statements were however in the record. 7. As observed earlier by the Court of Appeal in the case of **Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR,** This being a first appeal, the primary role as a first appellate court is to re-evaluate, re-assess and reanalyse 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*.* The trial Court had the benefit of hearing oral evidence and seeing some of the documents referred to in her judgment but missing form the record of appeal. However, from the documents available on record particularly the Bank statements from Cooperative Bank which showed salary payments were by China Henan International Cooperation Group Company Limited. There is no evidence linking the appellant with the respondents in this appeal. 8. As rightly observed by the trial court and submitted by Counsel for the respondent, section 37(5) of the Employment Act apportions the burden of proof on either party on a claim for unfair termination. The employee has a duty to establish that an unfair termination has occurred while the employer has a duty to prove the reasons for the termination. The burden of proof is therefore mutually exclusive and failure by one party to discharge their statutory burden of proof, does not lessen the other’s 9. This Court as an appellate court, will not interfere with the decision of the trial court if it is reasonably persuaded that the decision of the trial court is a reasonable application of the law as against the evidence presented by parties before that court. It matters not that this court could have on the same facts reached a different conclusion if the decision of the lower court is the most logical and just conclusion arrived at on the basis of the evidence presented at the trial. 10. This Court having reviewed the record and the judgment of the trial court and noting the gaps in the record of appeal, finds no reason to disturb the findings of the trial court. 11. **In conclusion the appeal is found without merit and is hereby dismissed with costs.** 12. **It is so ordered.** **Dated at Nairobi this 29th day of May, 2026** **Delivered virtually this 29th day of May, 2026** **Abuodha Nelson Jorum** **Presiding Judge-Appeals Division**