https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1700

Okambo v Metal Crowns Ltd (Employment and Labour Relations Appeal E265 of 2025) [2026] KEELRC 1700 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1700 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Appeal E265 of 2025 NJ Abuodha, J June 19, 2026 Between Geofry Magak Okambo Appellant and Metal Crowns Limited Respondent (An appeal from the Judgment and Decree of Honourable T. Nyangena Senior Principal Magistrate, delivered on 30th July 2025 in Milimani MCELRC No. E1353 of 2020) Judgment 1.Through the Memorandum of Appeal dated 12th August 2025, the Appellant appeals against the whole Judgment of Honourable T. Nyangena, Senior Resident Magistrate delivered on 30th July,2025. 2.The Appellant raised six grounds of appeal where among others he faulted the trial court for dismissing his claim while finding that he was not an employee of the Respondent but rather a casual employee despite the Respondent’s admission that he was its employee from 19th November, 2015 to 6th April, 2020, failed to find the Appellant was declared redundant due to COVID 19 pandemic and the trial court shifting the burden of proof of the reasons of the unfair termination to the Appellant. 3.The Appellant prayed that the appeal be allowed with costs and the judgment and decree of the lower court be set aside and instead judgment be entered for the Appellant as prayed in the claim. 4.The Appeal was disposed of by written submissions. Appellant’s Submissions 5.The Appellant’s Advocates Kangethe Waitere & Company Advocates filed written submissions dated 3rd December, 2025 and on the issue of whether the trial Magistrate erred in holding that the Appellant was not an employee of the Respondent but rather a casual labourer despite the Respondent’s admission that the Appellant was its employee from 19th November, 2015 to 6th April,2020 counsel submitted that the evidence on record was that the Appellant was employed by the Respondent in August, 2015 as a store attendant at a monthly salary of Kshs 30,200/ until 15th April, 2020 when his employment was terminated on account of redundancy. 6.Counsel submitted that the Respondent did not produce work records to verify if the Appellant started work on 19th November, 2015 and not August, 2015. That the trial court erred by stating that the Respondent had denied employing the Appellant. That although the Respondent alleged that it employed the Appellant as a casual labourer it was clear the Appellant had worked for the Respondent for 5 years before his termination and he could not be termed as a casual employee by dint of section 37 of the Employment Act. 7.It was submitted that the Appellant’s employment had assumed permanency and was deemed to be one where wages were paid monthly while relying on the case of Nanyuki Water & Sewage Company Ltd vs Benson Mwitit Ndiritu & 4 Others (2018) eKLR on this assertion. Counsel also relied on section 2 of the Act on the definition of a casual employee while submitting that the Appellant who was employed for 5 years could not be a causal employee. Counsel relied on among others the case of Silas Mutwiri v Hagai Multi Cargo Handling Services Limited (2013) eKLR on conversion of casual employees to term one by dint of section 37 of the act. 8.On the issue of whether the trial magistrate erred in shifting the burden of proving employment relationship from the employer to the employee counsel submitted that the Appellant was employed on a verbal contract which the Respondent never reduce to writing which went against section 9(2) and 10(7) of the Act on producing a written contract and where no such is produced by employer the burden of proving or disproving a term of employment to rest on employer. That the trial court shifted the clear burden of proof to the Appellant instead of the Respondent as per clear provisions of section 10(7) above. 9.Counsel relied on the case of Boniface Mbukha vs CRJE (East Africa) Ltd (2022) KEELRC 4059(KLR) on protections of an employee under sections 10(6) and 10(7) of the Act where the employer ought to produce work records to disapprove the employee’s allegations in oral contracts. 10.On the issue of whether the trial court erred by not finding that the termination of the Appellant’s employment amounted to a declaration of redundancy which was unfair and unlawful because the Respondent’s testimony was that the Appellant was laid off because the Respondent was downsizing due to COVID 19 effects on its business, counsel submitted that the evidence on record supported a case of termination on account of redundancy. That the Respondent’s evidence was that it was downsizing due to reduced business as a result of the effects of Covid 19. That the loss of employment was due to the Respondent’s operational reasons due to reduced business which amounted to redundancy while relying on among others the case of Peris Njeri Kinyanjui vs Kobo Safaris Ltd(2016) eKLR. 11.On the issue of whether the trial magistrate erred in shifting the burden of proving the reasons of termination from the Respondent to the Appellant and analyzing the law counsel submitted that it was not in dispute that the Appellant’s employment was terminated by the Respondent in April 2020 in a downsizing exercise which amounted to redundancy. Counsel relied on section 43 which required the employer to prove the reasons for termination failure to which the termination would be considered unfair. 12.Counsel relied on the case of Daniel Mburu vs Hygrotech East Africa Ltd (2021) eKLR to submit that even in cases of redundancy the employer had a burden under section 43 of the Act to prove the reasons for termination. That the Respondent did not adduce evidence on reduction of work hence it failed the substantive test. That the Respondent further failed to show that it complied with the mandatory provisions on procedure provided for under section 40(1) of the Act. That the Respondent never gave notice to the Appellant, consult/afford him a hearing and the selection criteria was not given. 13.Counsel relied on among others the case of Hesbon Ngaruiya Waigi vs Equitorial Commercial Bank Limited (2013) eKLR on adherence to procedural dictates of section 40 of the Act. Counsel also relied on the case of Cargill Kenya Limited vs Mwaka & 3 Others (Civil Appeal 54 of 2019) KECA 115(KLR) on the need for consultations during redundancy among other requirements under the Act. That the Respondent did not comply with the legal requirements on procedure; failed on procedural test hence the termination was unfair. 14.On the issue of whether the trial Magistrate erred by dismissing the Appellant’s claim despite overwhelming evidence of unfair termination counsel submitted that the Appellant was entitled to the prayers sought in their claim being notice pay, severance pay for 5 years worked, compensation for unfair termination at 12 months’ salary together with costs and interests. Respondent’s Submissions 15.The Respondent’s Advocates Morara Apiemi & Nyangito Advocates filed written submissions dated 1st April, 2026 and on the issue of whether the Learned Magistrate erred in finding that the Appellant was a casual labourer counsel submitted that the trial court found that the Appellant had not established a prima facie case of unlawful termination. That the trial court in reaching this decision relied on the fact that the Appellant did not produce any employment letter or record of salary payment. The Respondent testimony was that the Appellant was a casual labourer paid through a casual register. That the Respondent during cross examination stated that the Appellant worked for 13 days a month and he was informed prior to termination that there was no more work. 16.It was submitted that the Respondent’s witness elaborated that the Respondent’s action to downsize its casual labourers was necessitated by the drastic effects of Covid 19 pandemic. Counsel relied on the case of Rapid Kate Services Limited v John Mutisya & 2 others (2018) eKLR on when casual employees convert to a casual employee to contract employee when they prove they were employed on casual basis and worked for an aggregate period of more than a month. 17.Counsel submitted that the Appellant failed to prove that he was employed on a permanent or contract basis as there was no evidence adduced to support the said claim. That the Appellant did not adduce evidence to show he was a store attendant as claimed. That the Respondent adduced evidence to support its position that the Appellant was a casual employee in its plastic department by producing a copy of casual wages which was not controverted by the Appellant. 18.Counsel relied on the case of Peter Maundu Malonza v Frigoken Limited (2020) eKLR where the court refused to convert a casual employee to a term employee by dint of section 37 of the Act because the employee had not worked for an aggregate period of one month as a casual employee. It was submitted that the Appellant appeared for work intermittently on different days without his attendance aggregating to a month. That he served sporadic stints spanning a few days hence his employment did not meet the criteria for conversion to a contract service. That the Appellant did not produce any employment contract or any membership of a union as proof that he was a permanent employee as he alleged. That the Appellant received a daily wage that was paid monthly as evidenced by the Respondent’s copy of wages and their witness testimony. 19.Counsel further urged the court to be guided by the case of Josphat Njuguna vs High Self Group (2014) eKLR where the court held that section 37 does not obligate an employer to absorb casual employees within 24 hours. 20.Counsel submitted that the Appellant amended its claim to reflect unfair termination on grounds of redundancy. That the burden lied with the Appellant to prove that he was unfairly terminated on grounds of redundancy on a balance of probabilities. Reliance was placed on section 40 of the Act on redundancies where the employee must discharge his burden before the employer justifies their reasons for termination. 21.Counsel relied on section 47(5) of the Act on the respective burdens of proof in employment matters. Reliance was also placed on Ngui v Termi-lever Limited (2024) KEELRC 96 (KLR) on the burden being on employee first to show they were terminated on redundancy grounds. That the Appellant failed to discharge this burden and the trial court should not be faulted. That no evidence was tendered to support the Appellant’s plea of unfair termination through redundancy. 22.On the issue of whether the trial magistrate erred in dismissing the Appellant’s claims counsel submitted that in the view of their submission that the Appellant’s casual employment did not convert to term contract under the act the alleged unfair termination did not arise. That under section 35(1) of the act the employment was terminable by either party without notice at the end of each day for no reason. That the Appellant was not entitled to compensatory damages which are available to term employees terminated unfairly. 23.Counsel submitted that the Respondent complied with the law in terminating the Appellant’s employment and paid all dues owing to the Appellant who admitted to having received his dues of Kshs 70,954/=. Determination 24.The court has considered this Appeal, the record of appeal and submissions filed by the both parties herein and restates 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 Court of Appeal for East Africa in Peters –vs- Sunday Post Limited [1958] EA 424. The appropriate standard of review established in cases of appeal can be stated in three complementary principles:i.First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;ii.In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; andiii.It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time. 25.In this case, the Judgment of the trial court was that the Appellant’s claim was dismissed for lack of evidence of him being employed by the Respondent and failure to produce employment contract or salary payment. That the Appellant never rebutted the Respondent’s assertion that he was a casual labourer. 26.The Appellant being dissatisfied with the above judgment appealled on the whole of the Judgment by fronting six grounds of appeal. The court finds that the issues placed by the parties for determination in the appeal are:-i.Whether the trial court erred by finding that the Appellant did not prove he was an employee of the Respondent.ii.Whether the trial court erred in finding that the Appellant did not prove he was unfairly terminated on the grounds of redundancy.iii.WHEHWWwWhetherWhetherWhe Whether the trial court erred in not awarding the Appellant his terminal dues in his claim. Whether the trial court erred by finding that the Appellant did not prove he was an employee of the Respondent 27.The Respondent alleged that the Appellant was a casual labourer in its plastic department whose engagements could not be an aggregate of 30 days. That he would work for 13 days in a month and his daily wages paid at the end of the month. The Appellant alleged that he was employed by the Respondent since August 2015 up to April 2020 when he was terminated on grounds of redundancy due to COVID 19 strain on the business. That his salary was paid monthly and even if he was a casual employee his terms converted to term employee by dint of section 37 of the Act. 28.The trial court held that the Appellant did not produce evidence to show he was an employee of the Respondent as claimed. Whereas it is true an employee has to prove an employment relationship this court appreciates that the Act acknowledges oral contracts. Section 9(2) and 10(6) requires the employer to put down an employment contract in to writing while section 10(7) stipulates that where an employer does not reduce the contract into writing the burden of proving or disapproving a term of employment lies with the employer. 29.This court therefore notes that Respondent was bound to produce documents to show that the Appellant was not employed in August 2015 as claimed and that he was a casual labourer whose aggregate period could not be a month. The Respondent produced casual wages from 21st October, 2019 to 3rd November, 2019 which is a period of 13 days cutting across the month of October and November, 2019. 30.The Respondent did not produce casual wages for other months over the 5 years period claimed by the Appellant. In the period of 13 days the Appellant was paid a total of Kshs 19,685/=. This means per day he was paid Kshs 1,514/=. The said casual wages shows that the Appellant was in the Plastic department although there was no role indicated. The Appellant alleged that he was a store attendant and from the Casual wages it was indicated he was in the plastic department without any role and the daily salary of Kshs 1,514/= has to be weighed with minimum wages to discern whether the Appellant was a casual labourer or Store attendant. 31.The Regulation of Wages Amendment Order 2018 provided for daily wage of general labourer as Kshs 653/ while that of Store keeper was Kshs 1,005/ exclusive of house allowance. The daily wage therefore of Kshs 1,514/= could not be for a general labourer but was near a store attendant when house allowance was added. The court therefore believes the Appellant’s word that his monthly salary was Kshs 30,200/= and that he was employed from August 2015 to April 2020 there being no other evidence from the Respondent to prove otherwise as the custodian of employment records under section 74 of the Employment Act. 32.This therefore meant the Appellant served the Respondent for almost 5 years and there was no way he would be a casual labourer over those years. This court notes that under section 37 of the Act a casual employee converts to a term employee after three months. The court has amplified this position as was held in the case of Silas Mutwiri vs Haggai Multi-Cargo Handling Services Limited [2013] eKLR that:“The Employment Act, 2007 has now created a fundamental shift from the previous Employment Act, Cap 226 with regard to who a casual employee is. This followed many decades of abuse, violation and disregard of the rights of workers who were classified as casual workers or casual labourers. This shift has extensive ramifications as any employer who employs an employee for more than three (3) consecutive months and or is on a job that is not expected to end or be finished within this time, the law creates a mandatory provision and coverts such casual employment into term contract status.” 33.This therefore means the Appellant converted to a term employee by October 2015 if at all he was a casual employee as alleged. The Respondent also paid the Appellant final dues of Kshs 70,594/= and made him sign an employee discharge certificate. If the Appellant was not its employee, why was he signing a discharge certificate and why were they paying him final dues. During the hearing the Respondent stated that the final dues was overtime and days not covered. This clearly shows the Appellant was their employee who they wanted to bind him by the discharge certificate that he would not have future claims against them. Why then turn around and claim the Appellant was not their employee? 34.This court therefore disagrees with the trial court finding that the Appellant did not prove that he was an employee of the Respondent and finds that he was indeed an employee of the Respondent who converted to a term employee and the evidence on record points to the narration that he was an employee of the Respondent. Whether the trial court erred in finding that the Appellant did not prove he was unfairly terminated on the grounds of redundancy. 35.This court is aware that the burden of proof in employment matters is as provided for under section 47(5) of the Employment Act. The employee must prove that termination occurred which was unfair and the employer must justify the reasons for termination. 36.It is not in dispute that the Appellant was terminated by the Respondent on account of redundancy and it was upon the Respondent to justify the reasons of redundancy. The Appellant was terminated on April 2020 and the Respondent alleged that it was downsizing due to effects of COVID 19. Whereas the court takes judicial notice of the effects of COVID 19 pandemic on businesses after finding that the Appellant was an employee of the Respondent the Respondent was bound to adhere to section 40 of the Employment Act while declaring the Appellant redundant. 37.Redundancy has been defined under section 2 of the Employment Act which is an initiative of the employer and the same is not unlawful if undertaken under the stipulated procedure and the reason valid as seen above as per proper reading of section 43 of the Act on proof of reasons for termination even in cases of redundancy. 38.The Respondent offered the Appellant final dues of Kshs 70,594/= which it termed as overtime and days not covered while the Appellant alleged that the amount was his untaken leave days. Since the Respondent did not stipulate what the final dues constituted this court find that the Respondent did not comply with redundancy notices or payment in lieu of notice, consultations and payment of severance pay as required by the Act. 39.On the issue of procedural fairness section 40 of the Employment Act guides any employer who intends to terminate employee on account of redundancy. In addition, in Kenya Airways Limited VS. Aviation and Allied Workers Union of Kenya and 3 Others (2014) eKLR, the Court of Appeal pronounced itself as follows:“Thus, redundancy is a legitimate ground for terminating a contract of employment provided there is a valid and fair reason based on operational requirements of the employer and the termination is in accordance with a fair procedure. As Section 43(2) provides, the test of what is fair reason is subjective. The phrase “based on operational requirements of the employer” must be construed in the context of the statutory definition of redundancy.What the phrase means, in my view, is that while there be underlying causes leading to a time redundancy situation such as reorganization, the employer must nevertheless show that the termination is attributable to redundancy – that is that the services of the employee has been rendered superfluous or that redundancy has resulted in abolition of office, job or loss of employment.” 40.It is trite law that section 40 of the Employment Act has to be substantially complied with in declaring a redundancy. The Respondent during hearing admitted that the Appellant was terminated without notice, no notice to labour officer, no consultation and there was no payment of severance pay. 41.This court therefore disagrees with the trial court that the Appellant did not establish a case for unfair termination against the Respondent and finds that the Respondent terminated the Appellant under grounds of redundancy but did not adhere to section 40 of the Act hence the termination was unfair and unlawful. Whether the trial court erred in not awarding the Appellant his terminal dues in his claim. 42.This court after faulting the Respondent finds that the Respondent paid final dues of Kshs 70,594/ which the Appellant claimed was untaken leave while the Respondent alleged was overtime and uncovered days this court will take the same as leave pay and award the Appellant damages for unfair termination, notice pay and severance pay. The discharge certificate did not absolve the employer from its statutory obligations as was held in the case of Thomas De Rue (K) Limited v David Opondo Omutelema [2013] eKLR. 43.The Appellant was entitled to damages for unfair termination under section 49 of the Act while taking in to account the considerations under sub section 4 among them the period served of almost 5 years and the nature of termination which was unfair. This court finds that four months’ salary as adequate compensation since the Appellant also entitled to severance pay which will be calculated for 4 years considering the appellant started working in August 2015. The Appellant is also entitled to notice pay since he was terminated without notice. 44.In the upshot the Appeal is found merited and is hereby allowed with costs to the Appellant as follows:a.Four Months’ compensation for unfair termination Kshs 30,200/ x 4 = Kshs 120,800/=b.Notice pay……….. Kshs 30,200/c.Severance pay Kshs 30,200 x4= Kshs 120,800/=TOTAL KSHS 271,800/= 45.It is so ordered. DATED AT NAIROBI THIS 19TH DAY OF JUNE, 2026DELIVERED VIRTUALLY THIS 19TH DAY OF JUNE, 2026ABUODHA NELSON JORUMPRESIDING JUDGE-APPEALS DIVISION