https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1798

Mlai v Associated Construction Co. [K] Ltd (Appeal E027 of 2025) [2026] KEELRC 1798 (KLR) (24 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1798 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Malindi Appeal E027 of 2025 K Ocharo, J June 24, 2026 Between Jira Mgandi Mlai Appellant and Associated Construction Co. [K] Ltd Respondent ((Being an Appeal against the judgment of Hon. Rita Amwayi – PM delivered on 5th September 2024 at Kaloleni MC – ELRC No. E042 of 2024) Judgment Background 1.Contending that at all material times, he was an employee of the Respondent, whose employment the Respondent terminated unfairly, the Appellant sued it seeking against it in the above stated suit, seeking various reliefs against it. Thus:a.A declaration that his dismissal from employment was unfair and unjust.b.1 month’s salary in lieu of notice of………….. KShs 13,572.90c.Leave allowance for 6 years…… …. KShs. 54, 813.15d.Salary underpayments…………………..KShs. 226,374.15e.House allowance……………………………KShs. 122,155.80f.Public Holidays worked ………………………KShs. 26,105. 50g.NSSF deductions not remitted………………KShs. 1,200.00h.Compensation for unfair termination……... KShs. 162,874.80 2.The Respondent responded to the claim with a Response to the Memorandum of Claim dated 21st February 2025. The Respondent disputed the Appellant’s cause of action and denied his entitlement to the reliefs sought. 3.After hearing the parties’ respective cases and considering their evidence and submissions, the trial Court dismissed the Appellant’s case with costs. The Appellant’s Case before the Lower Court 4.It was the Appellant’s case before the trial Court that he first entered the Respondent’s employment in March 2017 as a general labourer, at a monthly salary of KShs. 9,800, until February 2022, when the Respondent summarily terminated his services. 5.He stated that on 15th February, 2022, as he was leaving work, his supervisor, Mr Tom, instructed him not to report for work the following day. He further told him that he would be called later to resume work, but he waited for the call, and it never came. 6.The Appellant further stated that he was not given notice of termination and was not paid in lieu of notice. He also stated that he never took leave during his employment with the Respondent. He worked more than the 8 hours stipulated by law; he was not paid a house allowance during his employment, and he worked on public holidays without compensation. 7.He further stated that at all material times, the Respondent, contrary to the requirements of the law, paid him a monthly salary of KShs. 9,800.00, an amount which was below the then-applicable minimum wage of KShs. 13,572. 8.He further alleged that at all material times the Respondent deducted NSSF contributions from his salary but failed to remit them to the relevant Authority in some months, contrary to sections 20 and 21 of the Employment Act, 2007. 9.The Appellant argued that the termination of his employment was unjustified and failed to comply with the procedural requirements of the Employment Act. The Respondent’s Case before the Lower Court 10.The Respondent called one witness, KipKosgei James Snow, the Respondent’s Project Administrator, to give evidence before the lower Court. The witness stated that the Appellant was not employed by the Respondent at the alleged material time at its road construction site, the Jomvu Kuu–Jitoni–Rabai road in Kilifi County, or at all. 11.The witness asserted that the said road construction project was commenced around August, 2017, and as such, it was not reasonably possible for the Appellant to enter the employment of the Respondent in March 2017. By March 2017, the Respondent had not received notification of tender award. 12.He stated that the Respondent’s contract for the road construction project was temporarily suspended by the Government due to insufficient funds. If he was an employee of the Respondent at the material times, he would have been temporarily released from his employment pending the project’s resumption once the Government allocated funds. 13.The witness further asserted that all its employees who had worked for a continuous period of twelve months were entitled to utilise their earned leave days in accordance with the law. 14.He further stated that all the General labourers at the Respondent company were paid an agreed all-inclusive monthly salary of KShs. 10,400. As the project was in Kaloleni, General labourers were, per the relevant Wage Orders, entitled to a minimum monthly wage of KShs. 7,240. Judgment of the Lower Court 15.After hearing the parties and considering their respective evidence and submissions, the learned trial Magistrate found that the Appellant failed to prove that he was, at the material time, an employee of the Respondent, or at all. She dismissed the Appellant’s case primarily on that basis. The Appeal before this Court. 16.Dissatisfied with the whole judgment, the Appellant appealed against the decision on the following grounds:1.The Learned Magistrate erred in law and fact in holding that the Appellant was not employed from June 2016 to June 2022, despite the Appellant adducing an NSSF provisional Member Statement of Account confirming continuous working engagement with the Respondent since 21st March 2018.2.The learned Magistrate erred in law and fact in failing to acknowledge that the Appellant was unfairly terminated from employment, on the basis that the Appellant was not employed by the Respondent, despite overwhelming evidence in support of unfair termination of the Appellant.3.The Learned Magistrate erred in law and fact in arriving at the conclusion that the Appellant was undeserving of his sought reliefs, including overtime allowance, off days and holidays allowance, despite there being overwhelming evidence in support of the same.4.The Learned Magistrate erred in law and fact in failing to find that the termination of the Appellant’s employment was unlawful for the reason that the Appellant was not granted a hearing as contemplated under the mandatory provisions of section 41 of the Employment Act.5.The Learned Magistrate erred in law and fact in failing to award the Appellant service pay for unremitted NSSF deductions from his salary despite the NSSF extract showing there were no remittances by the Respondent for months, but the same were being deducted. Analysis and Determination 17.The Court has carefully examined the record of appeal, the grounds of appeal, the judgment of the lower court, the submissions of the parties filed in this appeal, and the ground upon which the Appellant’s suit was primarily dismissed. The following issues present themselves for the determination of this Court: whether the learned trial Magistrate erred in law and in fact in finding that the Appellant was not an employee of the Respondent at the material time or at all, if the answer is in the affirmative, whether the Appellant’s employment was terminated unfairly and unjustly; and whether the Appellant was entitled to the reliefs sought. 18.It is a well-established principle that, this being a first appeal, the Court is duty-bound to reconsider and re-evaluate the evidence on the record and arrive at its own independent conclusions, bearing in mind the inherent limitation that the Court neither saw nor heard the witnesses give their testimony. In Sumaria & Another v Allied Industries Limited [2007] KLR, on the mandate of the first Appellate Court, stated;“Being a first appeal, the Court was obliged to consider the evidence, re-evaluate it and make its own conclusions bearing in mind that a court of appeal would not normally interfere with a finding of fact by the trial court unless it was based on a misapprehension of the evidence or that the judge was shown demonstrably to have acted on a wrong principle in reaching the finding he did.” 19.Was the Appellant an employee of the Respondent at the material time or at all? Inarguably, the Appellant did not present any contract of employment before the trial Court. However, that is not to say that a contract of employment is the only way of proving the existence of an employer-employee relationship. This Court is not oblivious of the fact that contracts of employment have, in some situations, been created orally. 20.To establish that there was an employment relationship between the Respondent and himself, the Appellant submitted a National Social Security Fund statement of account to the learned trial Magistrate. He consistently argued that this document was sufficient proof that he was an employee of the Respondent at all relevant times. 21.In my view, a statement of account from the National Social Security Fund [NSSF] may, in appropriate circumstances, constitute persuasive evidence of the existence of an employer-employee relationship. However, where the statement reflects a commencement date for the contributions that expressly or by necessary implication predates the date which the employer has satisfactorily demonstrated to be the commencement of the employment relationship or that in the circumstances of the matter there wouldn’t have been an employer-employee relationship at that time, or that there was no relationship at all, the document loses much of its evidential value. In such circumstances, it can seldom, without more, be relied upon as a sound basis for concluding that the employment relationship existed from the earlier date reflected in the statement or at all. 22.As the learned trial Magistrate found, the Respondent placed before her evidence, including a payroll for the period in issue, to demonstrate that the Appellant was not its employee at the material times or at all. Hence, the conclusion that he was not an employee, contrary to his allegation. I have carefully considered the documents placed before the trial Court on this aspect and the Appellant’s evidence, and hold that the learned trial Magistrate didn’t err in finding the Respondent’s version more convincing. I am unpersuaded by the Appellant’s submissions that the NSSF statement sufficiently proved the relationship, and that the documents tendered by the Respondent did not sufficiently discount the Appellant’s. 23.Section 47[5] of the Employment Act,2007, creates a reverse burden of proof system. It initially requires the employee to prove that an unlawful termination of employment or a wrongful summary dismissal occurred. It is only after this requirement is satisfied that the evidential burden shifts to the employer to justify the termination/ summary dismissal. Where the employee has not demonstrated the existence of an employer-employee relationship, and particularly where the existence is denied by the adversary, it cannot be said under whatever circumstance that they discharged the legal burden under Section 47[5]. 24.In the upshot, I find that the learned trial Magistrate did not err in dismissing the Appellant’s case on the ground she did. Her judgment is hereby upheld. The Appellant’s appeal is hereby dismissed. Having found as I have, I see no need to expend judicial time on the other issues identified for determination. 25.Each Party to bear its own costs. READ, SIGNED AND DELIVERED THIS 24TH DAY OF JUNE 2026.OCHARO KEBIRAJUDGE