Otieno v Sheer Logic Management Consultants Limited (Employment and Labour Relations Appeal E099 of 2025) [2026] KEELRC 2246 (KLR) (31 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **ELRC APPEAL NO. E099 OF 2025** *(Before D. K. N. Marete)* **CYRUS OMONDI OTIENO………………………………………………APPELLANT** VERSUS **SHEER LOGIC MANAGEMENT CONSULTANTS LIMITED………RESPONDENT** **JUDGMENT** This matter was originated by way of a Memorandum of Appeal dated 10th April, 2025. It is an appeal against the entire judgment and decree delivered on 25th March, 2025 at Milimani in MCELRC No. E153 of 2023. By the impugned judgment, the trial court dismissed the Appellant’s claim in its entirety, having found that the Appellant was a piece rate worker who had not proved continuous employment converting his engagement to a term contract and had not proved unlawful or unfair termination. The Memorandum of Appeal sets out the following grounds: 1. *THAT the Learned Trial Magistrate erred in law and fact in holding that the Appellant testified that he is a casual labourer.* 2. *THAT the Learned Trial Magistrate erred in law and fact in holding that the Appellant admitted to being paid his May 2021 salary.* 3. *THAT the Learned Trial Magistrate erred in law and fact in holding there was evidence to prove that the Appellant was he was paid his May 2021 salary on 8th May 2021.* 4. *THAT the Learned Trial Magistrate erred in law and fact in holding that the Appellant was paid at a rate of Kshs. 0.0078 per bottle packed, evidence which was not controverted.* 5. *THAT the Learned Trial Magistrate erred in law and fact in holding that the Appellant did not produce any evidence to prove that he earned a gross salary of Kshs. 13,000/=.* 6. *THAT the Learned Trial Magistrate erred in law and fact in holding that the Appellant did not produce any evidence to prove that he worked continuously for nine years.* 7. *THAT the Learned Trial Magistrate erred in law and fact in holding that the evidence of the respondent's witness that the Appellant and other piece rate workers chose when or not to come to work was not controverted.* 8. *THAT the Learned Trial Magistrate erred in law and fact in holding that there was evidence to show that the Appellant worked intermittently on piece rate basis and his wages depended on work donc.* 9. *THAT the Learned Trial Magistrate erred in law and fact in holding that the Appellant had failed to prove on a balance of probability that he was in continuous employment with the Respondent.* 10. *That the Learned Trial Magistrate erred in law and fact in holding that the Appellant was paid after every two weeks and therefore a notice of two weeks was payable.* 11. *THAT the Learned Trial Magistrate erred in law and fact in holding that the Appellant had not established unlawful termination.* 12. *THAT the Learned Trial Magistrate erred in law and fact in holding that the Appellant was not entitled to any of the reliefs sought and consequently dismissed the Appellant’s entire claim.* 13. *THAT the Learned Magistrate erred in law and fact by disregarding the appellant's evidence and submissions.* 14. *THAT the Learned Magistrate erred in law and fact by disregarding the Appellant's Court of Appeal and High Court List of Authorities and/or precedents which are binding on the trial court.* 15. *THAT the learned Trial Magistrate erred in law and fact by not applying the law correctly.* 16. *THAT the entire judgement is against the weight of the evidence and law.* The Appellant prays thus: 1. *Allow the appeal herein and the judgement and decree dated 25th March, 2025 be set aside.* 2. *Allow the Appellant's claim against the Respondent herein of KSHS. 357,499.55 as more particularized and set out in paragraph 11 of the memorandum of claim* 3. *Interest at court rate on (b) above.* 4. *Certificate of Service* 5. *The cost of this appeal and suit in the subordinate court be awarded to the Appellant.* 6. *Any other relief that the Honourable court may deem fit and just to.* The Appellant’s case and submission is that it is not in dispute that he was employed by the Respondent, this being borne out by its own evidence. The Appellant submits that he was a monthly-paid permanent employee paid on a monthly basis and earned Kshs. 12,820.00 per month. He relies on the fact that the Respondent’s own evidence confirmed his employment and adduced payment records. As to the issue of termination, the Appellant submits that he was sent home in May, 2021 by his team manager and told he would be recalled, but was never contacted, and that this constitutes unfair and unlawful termination. The Appellant urges that this court, to in re-evaluating the evidence, find that the trial court made unsustainable factual findings against the weight of the evidence. The Respondent’s case and submission is that it was never in contention that the Appellant was its employee and that is in issue is the nature of his engagement. The Respondent submitted that the Appellant was a piece rate worker, paid at Kshs. 0.078 per unit of work done and that his own evidence before the trial court was consistent with that characterisation. On termination, it was submitted that the Appellant’s last day at work was 17th May, 2021 that being a piece rate worker he was not entitled to the statutory protections applicable to employees under a contract of service and that his failure to report for work thereafter was a self-induced separation. The issues for determination therefore are; * 1. Whether there was an employer-employee relationship between the Appellant and the Respondent. 2. Whether the engagement was on a permanent basis or on piece rate terms. 3. Whether the Appellant was unlawfully and unfairly terminated from employment. 4. Whether the Appellant is entitled to the reliefs sought. 5. Who bears the costs of this cause. In the authorities of **Peters v Sunday Post Limited [1958] EA 424** and **Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123**, it is established that the appellate court is under an obligation to reconsider and re-evaluate the evidence on record, draw its own independent conclusions on issues of fact and law and arrive at its own decision, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify and should therefore not interfere with credibility findings unless they are plainly wrong. The 1st issue for determination is whether there was an employer-employee relationship between the Appellant and the Respondent. This issue is not seriously in contest. The Respondent conceded from the pleadings at the trial court through to its submissions on appeal that the Appellant was its employee. The sole question is the nature of that engagement. The 1st issue is answered in to this extent. The 2nd issue for determination is whether the engagement was on a permanent basis or on piece rate terms. This is the crux of the appeal. The Court of Appeal’s guidance in **Krystalline Salt Limited v Kwekwe Mwakele & 67 Others [2017] KECA 717 (KLR)** is instructive: the determination of whether an engagement is piece rate or a contract of service depends on the totality of the circumstances, including the regularity of the engagement, the degree of control exercised by the employer, the integration of the worker into the employer’s operations and whether the worker was free to work for others simultaneously. A piece rate payment structure does not in itself determine the nature of the relationship. The trial court found, on the evidence of RW1, that the Appellant was paid at Kshs. 0.078 per unit of work done. That this rate was consistent with piece rate employment and that payment was made fortnightly consistent with piece rate practice. The Appellant’s pleaded case confirmed a rate-per-unit basis. This court has examined the record and finds no basis to disturb those findings. The Appellant’s pleaded case was that he earned a monthly salary, yet his own evidence confirmed payment at a rate per unit of work produced, which is the defining characteristic of piece rate engagement. A claimant who pleads a fixed monthly salary but gives evidence confirming payment per unit of work done cannot succeed on the monthly salary basis and the trial court was correct so to find. On the question whether the Appellant was in any event a casual employee whose engagement had been converted to a term contract under Section 37 of the Employment Act, 2007 the trial court found that the Appellant had not proved continuous engagement of the kind that triggers conversion under that provision. Having regard to the payment pattern, the absence of any record of continuous daily attendance and the Appellant’s own evidence on the nature of his engagement, this court on independent re-evaluation reaches the same conclusion as the trial court. The 3rd issue for determination is whether the Appellant was unlawfully and unfairly terminated. Section 45 of the Employment Act, 2007 renders a termination unfair unless the employer proves that the reason for it was valid and fair. However, the statutory protections against unfair termination in the Employment Act above apply to employees under a contract of service. A piece rate worker who is not retained or called for work on a given day or period is not thereby the subject of a termination within the meaning of the Act. Having found that the Appellant was a piece rate worker who has not proved continuous employment converting his engagement to a term contract, his claim of unfair termination cannot be sustained. The 3rd issue is so answered. The 4th issue for determination is whether the Appellant is entitled to the reliefs sought. Having found against the Appellant on the central issue of the nature of his employment, his claims for notice pay, compensation for unfair termination and the other reliefs pleaded all fall by the way side I am therefore inclined to dismiss the appeal with orders that each party bears their costs of this Appeal. Delivered, dated and signed this **31st** day of **July** 2026. **D. K. Njagi Marete** **JUDGE** Appearances: 1. Ms. Nyambane instructed by Moraa and Nyambane & Company Advocates for the Appellant. 2. Miss Kariuki instructed by AMK Law Advocates LLP for the Respondent.