https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2385

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **APPEALS DIVISION** **APPEAL E281 OF 2024** BETWEEN ERICK OKAYO GENGA………………….………………….. APPELLANT AND KENYA VEHICLE MANUFACTURERS LIMITED....…RESPONDENT (Being an appeal from the original Judgement and decree of Honourable V. Asiyo Principal Magistrate, delivered on the 17th day of September 2022 in Thika MCELRC No. E042 of 2022) JUDGMENT *(Before Hon. Justice Abuodha Jorum Nelson)* 1. Through the Memorandum of Appeal dated 27th September, 2024 the Appellant appeals against the whole of the Judgment of Honourable V. Asiyo delivered on 17th September, 2024 on grounds among others:- 1. That the learned trial magistrate erred in failing to find that there was no termination of the Appellant, 2. That there was discrimination in the criteria used to dismiss them from work as per the list of employees whose names were missing on the Notice Board, 3. That those whose names were missing on the list were told not to report for work the subsequent week thus a clear termination when the response did not have a rebuttal on the negotiations that took place in an effort to review working terms. 4. That the trial court failed to consider that the termination was not based on unavailability of work but was targeted to those who were seeking better terms of employment and; 5. That the trial court failed to comply with Order 21 Rule 4 of the Civil Procedure Act in writing the judgment. 2. The Appellant prayed that the judgment/decree of Honourable court delivered on 17th September, 2024 be reviewed and/or be set aside with the costs of the lower court suit and this appeal. 3. The Appeal was disposed of by written submissions. **APPELLANT’S SUBMISSIONS** 1. The Appellant’s Advocates Chepkemboi Milka & Company Advocates filed written submissions dated 10th June, 2025 and on the first and third ground of Appeal of whether the Learned Magistrate erred by failing to evaluate the evidence and consequently came to a conclusion that there was no termination, counsel submitted that the evidence adduced by the Appellant was clear that after raising concerns about their working conditions and earnings and subsequent meetings between the management and their representatives, a list was put up of staff members who were considered employees and the rest including him were verbally told by the shop steward not to come to work on the subsequent week as their names were missing. This evidence was confirmed by CW2 and RWl. That this was clear termination of his client’s employment. 2. It was submitted that on the other hand RW2 alleged that whenever there was reduction of work, the piece rate employees would be relieved of their duties. However, in the instance case the Appellant stated that he was in the midst of an assignment and had not even completed, the Respondent failed to prove that indeed there was reduction of the workload thus resulting in termination. 3. On Ground 2 and 5 the Magistrate erred by failing to take into account the Appellants evidence and that of CW2 that confirmed that there was discrimination in the criteria used to dismiss them from work and failure to consider that those dismissed were seeking better terms of employment counsel submitted that the shop steward did not explain the criteria used in selection of the employees that appeared on the list, however it was evident that those who were pursuing improved working conditions were left out. 4. It was submitted that this was outright discrimination as his client was arbitrarily chosen for dismissal. There was no notice issued as per the requirements of Section 35(1)(c) of the Employment Act. That the appellant’s evidence on timelines worked was never rebutted and payslips were produced as proof, the Respondent was thus obligated to issue notice of termination. RW1 admitted that no notice was given nor payment of salary in lieu of notice pursuant to provisions of Section 36 of the Employment Act thus the absence of procedural fairness. Counsel in addition relied on Section 45(2) of the Employment Act on what amounts to unfair termination. 5. On Ground 4 on whether the learned Magistrate erred by failing to evaluate the pleadings as filed specifically the Memorandum of Response which did not have a rebuttal on the negotiations that took place in an effort to review working terms. Counsel submitted that the Appellant’s evidence on this meeting was corroborated by CW2 who attended as their representative and subsequently RW1 confirmed that indeed the meetings happened and the resolutions passed. 6. It was submitted that this evidence was crucial as it precipitated the termination of the Appellant having been one of the employees who supported the reforms but the court failed to consider it in its judgement. The Respondents averred in their pleadings that there was reduction of work, thereby creating a presumption of redundancy which was not supported by any proof in their testimony in court. This being in default of section 40 of the Employment Act and confirming contravention of Section 45(2) of the same Act making the termination unfair. The Appellants averred in their testimony that there were ongoing tasks that were incomplete. 7. Counsel submitted that it was incumbent upon the Respondent to produce evidence that work had diminished pursuant to section 43 of the Employment Act. They did not call the shop steward to rebut the evidence of the Applicant and explain the criteria used in termination. That it was a violation of the rights of the Appellant as provided for under the Constitution of Kenya (2010) and the International Labour laws on elimination of discrimination by employers towards promotion of equal opportunity in employment sector. 8. On ground 6 whether the Learned magistrate erred by failing to evaluate the Appellant’s submission together with authorities cited counsel submitted that the magistrate did not refer or evaluate the Appellant’s submissions nor the authorities cited and why they could not be relied on in the final determination. Counsel further submitted that the Appellant proved his case on a balance of probability and urged this honourable court that the judgment delivered on 17th September 2024 be reviewed and or set aside with costs to the Appellant. In addition, this being a test suit, counsel submitted that the order ought to apply in the following suits: (a)Thika Mcelrc 33 of 2022(Elijah Otieno Owino-vs-KVM) (b)Thika Mcelrc 34 of 2022(Vitalis Omondi Okello-vs-KVM) (c)Thika Mcelrc 38 of 2022 (Justus Okello-vs- KVM) (d) Thika Mcelrc 39 of 2022(David Maina Githae-vs- KVM) (e) Thika Mcelrc 40 of 2022(Albanas Kioko Makenzie-vs- KVM) (f)Thika Mcelrc 41 of 2022(Julius Kavoi Mutisya-vs- KVM) (g) Thika Mcelrc 42 of 2022(Erick Okayo Genga-vs- KVM) (h) Thika Mcelrc 43 of 2022(George Odhiambo Owour -vs- KVM (i) Thika Mcelrc 47 of 2022(Erick Odhiambo Ongundi-vs- KVM) (j) Thika Mcelrc 48 of 2022(Francis Okullo Onyango-vs KVM) (k) Thika Mcelrc 49 of 2022(Dennis Munala Ngota-vs- KVM) **RESPONDENT’S SUBMISSIONS** 1. The Respondent through the Federation of Kenya Employers filed written submissions dated 20th January, 2026 and on the issue of whether this court ought to set aside the judgment of the lower court it was submitted that the Respondent’s witness in the lower court submitted evidence that employment at the Respondent was in various categories including piece rate employment which was a preserve of employees who would be engaged to complete various tasks as and when there was a need. The need was based on the part of a bus/vehicle the Respondent had been contracted to build hence the irregularity. 2. It was submitted that the Appellant in his statement and similarly during the hearing acknowledged that he was a piece rate employee and would be engaged from time to time when there was work. This was not continuous work. The amount payable would be agreed between the Appellant and the Respondent and paid out as soon as the task is complete. 3. On the claim that the Appellant was terminated from employment, the Appellant stated that the shop steward gave them a list of those who were allegedly “terminated” from employment and those who would continue in employment. It was submitted that as is the case in many organisations, the shop steward is an employee just like the Appellant and similarly the shop steward had no control over who an employer engages and disengages. As it was submitted by the Respondent’s witness, it is only the Human Resources office where such power rests. 4. The Respondent submitted that in any case, if indeed the shop steward had terminated the employment of alleged ‘undesired’ employees then what would have been the right recourse was for the Appellant to reach out to the human resource offices. It is quite telling why the Appellant did not have the shop steward as a witness to give evidence of the said termination as captured in the principle that he who alleges has the burden of proving the alleged fact. 5. It was submitted that the outcome of the meeting with management was not the expectation of the Appellant hence disengaging. The background of this suit was that the Appellant and his colleagues wanted to be converted to “permanent” staff or regular staff engaged on a monthly basis and as soon as it became clear that it was not possible, they opted to bolt. The rate increase was unpalatable. 6. The Respondent submitted that the Respondent’s witness stated as much in her evidence during the hearing, the Appellant was always welcome to come and perform tasks as and when there are buses/vehicles that need to be worked on as had always been the case since there was no termination of his employment. 7. It was submitted that the management only agreed to increase the rate paid to the workers. It was curious that the union abandoned this pursuit by the Appellant and his colleagues who decided to not return for any work and allege termination of their employment simply because they were not successful in altering their terms of engagement. The Respondent’s witness submitted that the nature of engagement was task based and hence the employees would determine when they would perform the said task. The employees would therefore leave at their own volition and the Respondent would never seek them out if they opted not to come and agree to perform a specific task as each task was agreed on beforehand. The Appellants would complete a task and opt not to return which was the case at times as several of these employees would work for other employers on similar terms around Thika. 8. It was submitted that a plain reading of the facts and analysis of the evidence before the court does not disclose a scenario where the Respondent terminated the employment of the Appellant. The Appellant simply disagreed with the terms offered for the tasks and declined to perform any more tasks. That cannot be said to be a termination of employment on the part of the employer. That this Honourable Court should hold that the Appellant neither substantiated his grounds of appeal nor demonstrated any erroneous application of law or fact sufficient to nudge this Honourable Court to set aside the decision of the Honourable Magistrate. 9. Reliance was placed on the decision in **Civil Appeal No. 79 of 2015 Krystalline Salt Limited vs Kwekwe Mwakele & 67 Others [2017]** where the Court of Appeal restated the nature of engagement of piece rate workers. It was further submitted that it appeared that the treatment of piece rate workers was a hybrid of regular employment and casual employment as per the Employment Act. Lengthy engagement under piece rate terms does not convert the employment to a term contract of employment and the employment is deemed to have ceased once the said task is completed and there being no further obligation on the employer to seek out said employee unless on mutual agreement on the task to be performed and the amount to be paid upon completion. 10. On the issue of whether the Appellant was entitled to the reliefs sought it was submitted that the Appellant had not established any erroneous application by the Honourable Magistrate. The Appellant failed to establish that there was a termination of employment or that such termination (if so) was unfair or unlawful. That the Appellant had not met the threshold for this Honourable Court to grant the orders sought. **DETERMINATION** 1. The court has considered the grounds of appeal, the record of appeal and submissions filed by the both parties herein and restates that is now more or less 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 held in **Gitobu Imanyara & 2 others v Attorney General [2016] eKLR,** the Court of Appeal stated that: - *“[A]n appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect”* 1. In this case, the Judgment of the trial court was that Claimant failed to prove his claim as against the Respondent on a balance of probabilities and the court dismissed the Claimant’s claim with costs to the Respondent. The court found that the Claimant was employed as piece rate employee hence he was not terminated. The Appellant being aggrieved by the judgment appeals on the whole of the Judgment raising 7 grounds. 2. The court finds that the grounds will be condensed in to two main issues namely: - 1. *Whether the trial court erred by finding that the Appellant was a piece rate employee hence he did not prove that he was terminated by the Respondent.* 2. WHEHWWwWhetherWhetherWhe *Whether the trial court erred by not awarding the Appellant his reliefs sought.* ***Whether the trial court erred by finding that the Appellant was a piece rate employee hence he did not prove that he was terminated by the Respondent*** 1. It was not in dispute that the Appellant was employed by the Respondent as a piece rate employee where they would work on need basis to assemble motor vehicles or fabrication of buses. The Appellant signed the piece rate contract which he admitted that he was employed as such. The payslips produced showed that he was employed on piece rate basis because the salary kept changing and as observed by the trial court and the recommendation letter referred to him as piece rate worker. The Appellant was therefore engaged on piece rate or need basis employment with the Respondent. 2. To this end, this court is guided by Section 2 which defines contract of service as follows: *‘means an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;* 1. The Court in the case of **Krystalline Salt Limited vs Kwekwe Mwakele & 67 Others [2017] eKLR** defined the different engagements as follows: - "*The Employment Act recognizes four main types of contracts of service: contract for an unspecified period of time, for a specified period of time, for a specific task (piece work) and for casual employment...The decision to elect which form of employment to go for, either as an employee or employer will depend on a number of factors, but the dominant consideration is, for the employee, the earnings and other physical conditions of employment, and on the other hand, savings for the employer."* 1. The court went on to state as follows: - **“***… it is important to bear in mind that in Kenya, employment is governed by the general law of contract as much as by the principles of common law now enacted and regulated by the Employment Act and other related statutes. In that sense employment is seen as an individual relationship negotiated between the employee and the employer according to their needs.* 1. In the case of **Kiverenge v Mbarire & another (Cause E881 of 2021) [2024] KEELRC 1216 (KLR) (24 April 2024) (Judgment)** the court held as follows: - *The Respondent’s case is that the claimant was employed as an independent contractor on a need-by-need basis. This did not amount to contract of service but a contract for service. He cannot therefore deem this as employment in the strict sense of the word, fact and law. Moreover, he has not established a case of employment on a balance of probabilities or even preponderance of evidence.* 1. From the evidence tabled before the trial court and caselaw considered above, it becomes inevitable that this court agrees with the trial court’s finding that the Appellant was only engaged on need basis since his efforts to have his contract transit to permanent one did not bear fruit and in any case he voluntarily signed the employment contract which provided for piece rate engagement hence he knew the nature of the engagement was piece rate and not permanent employment. The court cannot be called upon to convert a piece rate contract to a term one as it would be going against the autonomy of parties entering into contracts of choice as per the law. 2. On the issue of the termination of the employment since the Appellant was a piece rate employee who worked on need basis he could not fault the Respondent if there was no work and in any case there was agreement to increase their payment rate by 5% which he did not agree to and he wanted to be a term employee yet that was not possible to the Respondent as their work depended on availability of work. The Appellant never produced any termination letter of his contract or any notice of termination. 3. The court therefore finds that the Appellant was never terminated or discriminated as he was free to go to work for the Respondent as well as other employers. There was no termination as held by the trial court since the Respondent indicated that the Appellant was free to work for it as well as others in Thika area. **Whether the trial Court erred in not awarding the terminal dues claimed by the Appellant.** 1. The court having found that the Appellant was engaged on need basis and as noted by the trial court the Appellant was paid for the August 2022 for work done and August 2022 payslip confirmed, he was fully paid his dues. As observed by the trial court the Appellant was not entitled to the reliefs sought due to nature of his engagement which could not be converted to term employment. The Appellant failed to meet the burden placed on him under section 47(5) of the Employment Act that he was unfairly terminated. 2. **The appeal is therefore found without merit and is hereby dismissed with costs.** 3. **This being a test suit, the findings in this appeal will apply to similar cases listed under paragraph 11 of this judgment.** 4. **It is so ordered.** **Dated at Nairobi this 12th day of August 2026** **Delivered virtually this 12th day of August 2026** **Abuodha Nelson Jorum** **Presiding Judge-Appeals Division**