https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1900

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KAKAMEGA** **APPEAL NO. E010 OF 2025** ***(Being an appeal arising from the judgment and decree of*** ***Hon. Reuben S. Kipngeno (Principal Magistrate)*** ***delivered on 8th July 2024 in Bungoma Chief Magistrates’ Court ELRC No.285 of 2016)*** **JAFRED WALUCHO ABRAHIMU……………...…...APPELLANT** **-VERSUS –** **MALIWA SECURITY SERVICES LTD…….…1ST RESPONDENT** **MALIWA ENTERPRISES………………………2ND RESPONDENT** **VINCENT MASINDE……………………….…...3RD RESPONDENT** **(BEFORE HON. JUSTICE DAVID NDERITU)** **JUDGMENT** 1. **INTRODUCTION** 2. In a judgment delivered on 30th April 2025, the lower trial court dismissed the Appellant’s claim (the Claimant in the lower court) with no order on costs. 3. Dissatisfied with the judgment, the Appellant, through Nyamwega Osoro & Co. Advocates, filed a memorandum of appeal dated 26th May 2025 seeking that the appeal be allowed and the cause in the lower court be allowed with costs. 4. The appeal is based on the following grounds – 5. *The learned Trial Magistrate erred in law and in fact in dismissing the appellant's case against the weight of the evidence tendered by the Appellant.* 6. *The Learned Trial Magistrate erred in fact in holding that the appellant had not proved his case on a balance of probabilities.* 7. *The learned Trial Magistrate erred in law and in fact in not appreciating that the burden of proving or disproving a term of employment rests on an employer and not the employee, hence arriving at an erroneous decision.* 8. *The learned Trial Magistrate erred in law and in fact in not appreciating that the legal burden to keep employment records never shifts to an employee, hence arriving at an erroneous decision.* 9. *The learned Trial Magistrate erred in law and in fact, having found had worked for the Respondents, went ahead to dismiss the Appellant's case.* 10. *The learned Trial Magistrate erred in law and in fact in not applying Section 20 of the Employment Act in arriving at his decision, hence arriving at an erroneous decision.* 11. *The learned Trial Magistrate erred in law and in fact in failure to find that the Appellant was not issued with a certificate of service, a statutory requirement in employment.* 12. *The Learned Trial Magistrate erred in Law and in fact by disregarding the appellant's evidence on record and considering the respondent's evidence in isolation to the former.* 13. *The learned Trial Magistrate misunderstood the burden and standard of proof in an employment claim.* 14. *The Learned Trial Magistrate erred in law and in fact in putting into consideration irrelevant factors and not putting into consideration relevant factors in arriving at his decision.* 15. *The Learned Trial Magistrate erred in fact and law in disregarding the relevant principles and precedents.* 16. *The Learned Trial Magistrate erred in Law and in fact by overlying on the respondents' submissions and legal authorities which weren't relevant and without addressing his mind to the circumstances of the case.* 17. *The learned trial magistrate's decision, albeit a discretionary one, was plainly wrong.* 18. The Respondents are opposed to the appeal through Onkangi, Onkangi & Associates Advocates. 19. By consent, the court directed that the appeal be canvassed by way of written submissions. Ms Nyamweya for the Appellant filed written submissions dated 31st March 2026 and Mr Onkangi for the Respondents filed written submissions dated 20th April 2026. 20. **SUBMISSIONS BY COUNSEL** 21. Counsel for the Appellant submitted on three issues – *Whether the learned trial magistrate wrongly dismissed the appellant’s case; Whether the learned trial magistrate misapprehended the evidence on record and the law applicable, hence erroneous judgment; and, Who to bear costs of the Appeal.* 22. It is submitted that the trial court erred in law and fact by dismissing the Appellant's claim despite evidence establishing the existence of an employment relationship and unlawful termination. Counsel argued that the trial court, having found that the Appellant worked for the Respondents from 11th February 2021 to 15 May 2022, ought to have concluded that the employment relationship had been proved and proceeded to determine whether the termination was unlawful. 23. Counsel submitted that the Appellant's oral contract of employment was valid under ***Sections 2 and 9 of the Employment Act*** and that it was the employer’s statutory duty, not the employee’s, to prepare and maintain written records of employment. It was argued that the Respondents failed to comply with ***sections 10, 20, and 74 of the Employment Act*** by failing to issue written contracts, maintain employment records, or provide written wage statements. It is submitted that since the Respondents failed to produce records of employment, the burden of disproving the Appellant's terms of employment shifted to the Respondents under ***Section 10(7) of the Employment Act.*** To buttress this assertion, counsel cited ***Wafula v Gurdit Singh Shop [2022] KEELRC 15 (KLR)****.* 24. It is further submitted that the Appellant produced documentary evidence, including attendance records, NSSF statements and M-Pesa statements, proving his employment, while the Respondents failed to rebut that evidence. Counsel argued that the trial court misapprehended the evidence by finding that there had been only one payment of Kshs5,000/=, whereas the M-Pesa statements reflected several payments of Kshs. 4,900/=. Counsel cited ***Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] eKLR*** in support of the proposition that an appellate court should interfere where the trial court misapprehended the evidence and consequently reached an erroneous conclusion. 25. On the issue of termination, Counsel submitted that the Appellant was verbally dismissed without being informed of the reasons, without being issued with a notice to show-cause, or being invited to a disciplinary hearing. Counsel argued that the Respondents failed to comply with ***Sections 36, 40, 41, 43, 45*** and ***47 of the Employment Act*** and therefore the termination was both procedurally and substantively unfair. Citing ***Walter Ogal Anuro v Teachers Service Commission [2013] eKLR***, Counsel submitted that a fair termination demands for both substantive justification and procedural fairness. Counsel also cited ***Moreen* *Muhani v Namuben Manji Bhinji, ELRC (2020) eKLR***, in support of the proposition that an employee who is terminated without notice, terminal benefits, or a certificate of service is entitled to relief. 26. Counsel further submitted that the trial magistrate considered irrelevant matters, failed to determine the central issue of whether the termination was unfair, overlooked the involvement of the 2nd and 3rd Respondents in the employment relationship and, consequently, exercised judicial discretion on wrong principles, occasioning a miscarriage of justice. Counsel urged the Court to set aside the judgment of 30th April 2025 and substitute therefor a finding allowing the Appellant’s claim and award the Appellant the costs of both the trial and the appeal. 27. On the other hand, Counsel for the Respondents submitted on three issues – *What is the duty of the Court on a first appeal; What are the elements of a contract of service;* and, *Whether the Appellant definitely established that there was a contract of service*; 28. It is submitted that the appeal lacks merit and that the trial court correctly found that the Appellant had failed to prove his case on a balance of probabilities. Counsel argued that the Appellant failed to establish the existence of a contract of service or an employer-employee relationship with the Respondents and therefore failed to sustain a claim for unfair termination. 29. Counsel submitted that although the Appellant alleged that he was employed as a security guard between January 2021 and May 2022, at a monthly salary of Kshs5,000/= paid through M-Pesa, the Respondents denied employing him. The Respondents maintained that the 1st Respondent was only incorporated in 2021 and commenced operations in 2022, making it impossible for it to have employed the Appellant in 2021. The Respondents’ witness further testified that the Appellant was never engaged as a security guard and hence no records of his employment existed. 30. Counsel further submitted that the Appellant in his evidence did not establish the essential elements of a contract of service. To buttress this assertion, Counsel cited the provisions of ***Sections 2 and 9 of the Employment Act*** and the holding in ***Everret Aviation Limited v Kenya Revenue Authority (Through the Commissioner of Domestic Taxes) [2012] KEHC 6352 (KLR)*** on the distinguishing characteristics of a contract of service. Counsel also relied on ***Sections 107 & 109 of the Evidence Act*** on the burden of proof on he/she who alleges. Counsel also relied on ***Kirugi & Another v Kabiya & 3 Others [1987] KLR 347****,* submitting that the legal burden remained on the Appellant to prove his case notwithstanding the Respondents' defence. 31. Counsel argued that the Appellant failed to prove any offer, acceptance, consideration, or intention to create a contract. It is submitted that the attendance register relied upon by the Appellant was not authentic, the alleged manager's signature did belong to the 3rd Respondent, and the M-Pesa statement did not demonstrate payment of salary by any of the Respondents but instead reflected payments from third parties. Counsel also pointed out that the Appellant admitted that he had no letter of appointment or other documentary evidence confirming his employment. 32. Counsel further submitted that while the evidential burden may shift in employment disputes after an employee establishes a prima facie employment relationship, the initial overall burden of proof remained with the Appellant. Counsel cited ***Omusamia v Upperhill Springs Restaurant (Cause 852 of 2017) [2021] KEELRC 3 (KLR)*** in support of the argument that an employee must first establish the existence of an employment relationship before the employer may be called upon to rebut the same. 33. In conclusion, counsel submitted that the evidence adduced by the Appellant, including the attendance list and M-Pesa statements, was insufficient to prove an employment relationship or unfair termination. Counsel urged the Court to uphold the findings of the trial court, dismiss the appeal with costs, and affirm the judgment of the subordinate court. 34. **ISSUES FOR DETERMINATION** 35. The factual background of this matter is that the Appellant claimed that he was employed by the Respondents as a security guard from 11th February 2021 to 15th May 2022 at Simba Quarry, earning Kshs4,900/= per month. He alleged that his employment was terminated after he was instructed to report to the Respondents' office, only to find it closed and his position already filled by another guard. 36. The Appellant contended that the termination was unfair and unlawful as he was neither given notice nor a hearing, and that the Respondents failed to pay statutory dues, grant leave, and paid him below the prescribed minimum wage. He sought declarations that the termination was unlawful, salary for May 2022, notice pay, compensation for unfair termination, underpayments, and costs. 37. In the answer to the claim filed in the lower court – pgs. 34 – 39 of the record of appeal – the Respondents' case was that the Appellant was at no time their employee and that no employer–employee relationship existed between the parties. They denied all the material allegations in the memorandum of claim, including the alleged date of employment, terms of service, salary, and unlawful termination, and put the Appellant to strict proof of his case. The Respondents contended that the 1st Respondent was incorporated on 5th January 2021 and commenced operations thereafter, making it impossible for the Appellant to have been employed before the incorporation. They further pleaded that under the company's employment policy, every prospective employee was required to submit documents, including a KRA PIN certificate, certificate of good conduct, an application letter, recommendation letter from the chief, passport photographs, and identification documents before engagement. The Respondents, therefore, maintained that the Appellant was a stranger to them, was never employed by the 1st Respondent, was not unlawfully terminated, and was consequently not entitled to the reliefs sought. They prayed for the dismissal of the claim with costs. 38. Arising from the foregoing, the issues for determination by this court are the following – 39. ***Whether the learned trial magistrate erred in law and fact in finding and holding that the Appellant was at no time or period an employee of the Respondents.*** 40. ***What orders should this court make in the disposal of this appeal?*** 41. ***Costs*** 42. **EMPLOYMENT** 43. The trial court in its judgment – Pg. 61 of the Record of appeal –found that the Appellant had not established the elements of a contract of service. The trial court expressed that the Appellant had failed to establish an employment relationship between him and the Respondents and or either of them. 44. The existence of employer -employee relations is paramount in a claim based on employment. The Respondents denied that the Appellant was ever their employee. The burden of proof of the employment relationship and the terms thereof was with the Appellant. The Appellant produced Mpesa statement for the period 1st January 2021 to 31st December 2021 – Pgs. 17 to 30 of the record of appeal – in which there were two payments received from the 3rd Respondent. The first payment was on 10th April 2021(pg. 30) of Kshs3045/= and the other was received on 9th June 2021 of Kshs4,900/= (Pg. 28). The Appellant pleaded that his salary was paid via M-Pesa by the 3rd Respondent. He confirmed that only the two payments were shown in the statement while he had allegedly worked for 16 months. 45. The Appellant produced the attendance list allegedly from the 3rd Respondent’s office for the period from 1st April 2021 to 31st April 2021. While the list included the name of the Appellant, it bore no name of either of the Respondents. There is no signature or letter-head or stamp from either of the Respondents. The Appellant testified that the 3rd Respondent signed the same, although there is no evidence indicating that the 3rd Respondent had signed. Curiously, the attendance list indicated that the Appellant worked on 31st April 2021. We all know that the month of April always has 30 days. The attendance sheet was for a single month yet the Appellant alleged that he had worked for 16 months. 46. The Appellant also produced the National Social Security Fund (NSSF) statement – pg.16 – for the period from 1st January 1982 to 31st March 2017, indicating his employer to be LUFAD FSA Community-Based Organisation. The Appellant conceded that there was no mention of the Respondents in the said statement. 47. During cross-examination in the lower court, the Appellant conceded that the 1st Respondent was incorporated and registered on 5th November 2021, while the 2nd Respondent was registered in December 2021- pg.56. 48. ***Section 47(5) of the Employment Act*** provides as follows – ***(5) For any complaint of unfair termination of employment or wrongful dismissal, the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer.*** 49. The burden of proof of the existence of an employment relationship as a basis for the claim for unfair termination was always with the Appellant. The Appellant did not call a co-worker he might have worked with to collaborate that he was an employee of the Respondents. The Appellant did not provide any evidence whatsoever that he worked for the Respondents as claimed. 50. The Court finds and holds that the mere fact the Appellant received Kshs4,900/= and Kshs3,045/= from the 3rd Respondent did not prove that the Appellant was an employee of the 3rd Respondent. Moreover, the Appellant did not seek payment of the unpaid salary apart from one month in May 2022 when he was allegedly dismissed. The Appellant pleaded that his salary was paid via Mpesa and not in cash – pg. 5. There was no evidence of continuous engagement and salary payment by the Respondents. At no point did the burden of proof that the Appellant was an employee of the Respondents shift to the Respondents. The Respondents vehemently denied the alleged employment relationship and the Appellant failed to prove otherwise. 51. The court upholds the judgment of the trial court that the Appellant failed to prove an employment relationship with the Respondents or any of them. This court finds no reason to interfere with the judgment of the lower trial court. 52. **COSTS** 53. Each party shall meet own costs for this appeal. 54. **ORDERS** 55. Flowing from the foregoing, the court makes the following orders – 56. ***The appeal fails in its entirety and is hereby dismissed.*** 57. ***Each party shall meet own costs in this appeal.*** **DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 2ND DAY OF JULY 2026.** **....................................** **DAVID NDERITU** **JUDGE**