https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1785

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT NAIROBI** *(Before Hon. Lady Justice Monica Mbarũ)* **APPEAL NO. E414 OF 2025** **CONSOLIDATED WITH** **APPEAL No. E413 of 2025** **CONSOLIDATED WITH** **APPEAL NO. E412 OF 2025** **LEVI WABUYKA WEKESA APPELLANT** **AND** **JACOB OMUNE KENYATTA APPELLANT** **AND** **TITUS WAFULA NYONGESA APPELLANT** *VERSUS* **ISMAX SECURITY LIMITED RESPONDENT** **[Being an appeal from the judgment of Hon. S. Ouko delivered on 27 November 2025, in Ruiru CMELRC No. E031 of 2025, Ruiru CMELRC No. E032 of 2025 and Ruiru CMELRC No. 027 of 2025]** **JUDGMENT** The appeal arises from the judgment delivered on 27 November 2025 in Ruiru CMELRC No. 031 of 2025, CMELRC No. 032 of 2025, and Ruiru CMELRC No.027 of 2025. The judgment consolidates **ELRCA Appeal No. E414 of 2026, ELRCA E413 of 2025 and ELRCA E412 of 2025**. The cause of action is the same, and the findings of the trial court in **Ruiru CMELRC E031 of 2025, CMELRC E032 of 2025 and CMELRC No. E027 of 2025** are identical. The appeals raise the same grounds. To avoid conflicting findings, a consolidation is necessary. The main appeal analysed and to be applied to the other is **ELRCA E414 of 2025.** The Appellant is seeking that the judgment be set aside on the grounds that the learned magistrate erred in finding that the fact of employment was not proved despite the uncontroverted evidence linking the appellant to the Respondent employer. The trial court misdirected itself by requiring production of a written contract. Yet, the law clearly recognises that the absence of a written contract cannot negate the existence of employment, and it should have drawn adverse inferences from the Respondent's failure to file a response. The appeal is that the Court sets aside the judgment and decree of the Subordinate Court dismissing the claim, and substitutes it with a finding that the claimant was indeed employed by the Respondent, orally and through demonstrated conduct. The Court should enter judgment in favour of the appellant as pleaded in the statement of claim. The appellant filed a claim before the trial court on the basis that he was employed by the Respondent as a security guard with effect from 1 July 2018, earning a basic monthly salary of Ksh. 7,800. There was no house allowance at the time of termination. He worked daily without rest from 6:00 pm to 6:00 am, Monday to Sunday. The Respondent remitted some statutory dues every month. On 30 June 2022, the Respondent wrongfully, unprocedurally, and unlawfully orally terminated his services on account of redundancy and refused to pay his terminal dues. This was after he reported for work and was informed that the respondent was reducing staffing and that he should go home. The appellant's case was that his employment was terminated unfairly, and he claimed the following dues: 1. One month's pay in lieu of notice Ksh. 8,970/- 2. 12 months’ salary compensation Ksh. 107,640/- 3. Severance Pay Ksh.17,940 4. House Allowance Ksh. 56,160/- 5. Leave dues Ksh. 25,116/- 6. Underpayments Ksh.253,371.60/- 7. Holiday Pay Ksh.13,156/- 8. Certificate of Service There was no response to the statement of claim. The learned magistrate heard the parties and held that the appellant failed to produce the employment contract and thus failed to prove the employment relationship. There was no recourse to the court. Without proof of employment, the claim was dismissed with costs. On the appeal, the appellant submitted that the trial court erred in finding that he failed to produce the employment contract, which is not necessary under the Employment Act (the Act). Section 8 and 10(7) of the Act require the employer to produce the employment contract, whether oral or written, as held in Nanyuki Water and Sewerage Company **Limited v Benson Mwiti Ndiritu & 4 others [2018] KECA.** The appellant produced the records from NSSF and the bank statement to confirm payments by the respondent. The appellant thus submitted that the duty to produce and proof of employment rests on the employer under sections 10 and 74 of the Act. As the employee, he discharged his burden under section 47(5) of the Act as held in **Barclays Bank of Kenya Ltd & another v Gladys Muthoni & 20 Others [2018] eKLR.** Upon the employee discharging the burden of proving unfair termination of employment under section 43 of the Act, the employer must prove the reasons for the termination of employment. The trial court hence erred in finding that the fact of employment was not proved, whereas there was a redundancy. There was no due process, and the claims made should have been analysed on the merits. The appeal should be allowed, and the trial court judgment reviewed with a review of the claims. Respondent submitted that the appellant failed to prove the existence of an employer-employee relationship and, in any event, failed to shift the burden of proof to the respondent. The Respondent cited the case of **Allied Wharfage Limited v Ganja Mavumba Nyawa (2020) KEHC 5277 KLR** for the proposition that the onus of proving an employment relationship under a contract of service lies with the person alleging the existence of such employment. The appellant alleged that he worked for the respondent from 1 July 2018 to 1 July 2022 as a security guard, earning a monthly income of Ksh. 8,000 and relied on a bank statement and an NSSF statement whose contents are not clearly decipherable. In **Kenya Union of Commercial Food & Allied Workers v Mwana Black Smith Limited [2013] KEELRC 502 (KLR),** the court held that where there is no documentary proof of employment or termination, the claimant bears the burden of proving their case by viva voce evidence. The respondent submits that whilst employers are expected to keep employment records, such as contracts and pays lips, the legal burden of establishing the existence of a contractual relationship rests with the employee. The appellant merely alleged that he worked as a guard between 2018 and 2022 and was unfairly dismissed, but failed to provide any substantive or corroborative evidence in support. **Determination** This being a first appeal, the Court is required to reassess the evidence, review the findings and make a conclusion. The Court, however, must take into account that the trial court had the opportunity to see and hear the witnesses. The main issue for consideration in the Appeal is whether the Appellant was an employee of the Respondent, whether his employment was unlawfully terminated and the attendant remedies. Upon the appellant filing his claim before the trial court, there was no response. The claim was not challenged. The averments therefrom that there was an employment relationship between the parties stand. Under section 47(5) of the Act, all that the employee is required to do is to establish a *prima facie* case of unlawful and wrongful termination of employment for the burden of proof to shift to the employer under section 43 of the Act. In **Reuben Wamukota Sikulu v Director of Human Resource Management, Ministry of Devolution & Planning & 2 others; Public Service Commission (InterestedParty) [2020] KECA 876 (KLR)**, where the Court emphasised that what the employee is required to do is establish a *prima facie* case. Once this is addressed, the burden shifts to the employer to prove the reasons that exist to justify termination of employment. No response was filed giving reasons for the termination of employment. The rationale is that the employer is the custodian of work records. Where employment commences on oral terms, under section 10(3) of the Act, such oral contract should be reduced to writing by the employer. Failure to address the employee's continued employment becomes protected under section 37 of the Act. Although the NSSF statement is not the primary proof of employment, the appellant produced his bank statements to confirm the respondent's monthly wage payments. Such a nexus confirms the employment relationship. Under section 37 of the Act, the appellant acquired rights and benefits thereunder. In this case, the learned magistrate’s findings that the appellant had failed to prove an employment relationship were in error since, upon the claim, without any response, the fact of employment was not challenged. Within the protected employment of the appellant, termination thereof on the grounds of redundancy should have adhered to the provisions of section 40 of the Act. However, there is no notice alleging redundancy. Equally, without a response, the court is left with the employee's word against the respondent's. What stands out is that, without any work record and with no written reasons for the termination of employment, the only matter for the court is the issue of due process as required under section 41 of the Act. Whether through redundancy, misconduct or gross misconduct, the due process under section 41 of the Act was imperative, as held in **Pius Isindu Machafu v Lavington Security Guards Limited [2017] eKLR** *“… the Act, which was enacted in 2007, places a heavy legal obligation on employers in matters of summary dismissal for breach of employment contract and unfair termination involving breach of statutory law. The employer must prove the reasons for termination/ dismissal [section 43]; prove the reasons are valid and fair [section 45]; prove that the grounds are justified [section 47[5], amongst other provisions. A mandatory and elaborate process is then set up under section 41, requiring notification and a hearing before termination. The Act also provides for most of the procedures to be followed, thus obviating reliance on the*[*Evidence Act*](https://new.kenyalaw.org/akn/ke/act/1963/46)*and*the Civil Procedure Act/*Rules. Finally, the remedies for breach set out under section 49 are fairly onerous and generous to the employee. But all that accords with the main object of the Act as appears in the Preamble.”* Therefore, without the due process explaining the reasons and mode of termination of employment, the respondent failed to adhere to the due process under the Act. The resulting termination of employment was wrongful, unlawful and unfair under section 45 of the Act. The employee is entitled to notice pay and compensation. The applicant claimed notice pay based on his last wage of Ksh. 8,000. However, he also claims underpayments, whereas as a guard he was earning Ksh. 8,000 instead of 15,722.60 per month. Under the Wages Orders applicable on 30 June 2022, a security guard working in Nairobi was entitled to Ksh. 15,201.65 plus a 15% house allowance of Ksh. 2,280.25 = Ksh. 17,481.85. Notice pay is due at Ksh. 17,481.85. For lack of due process and adherence to the Act, and in the absence of any response to the claim, the court finds that the respondent's blatant failures were unjustified. The application worked from 1 July 2018 to 30 June 2022. This is a 4-year period without any poor work record. Competition at 3 months is hereby found justified. Under section 49 of the act, the gross wage of Ksh. 52, 445. 70 in compensation. The appellant also claimed house allowance and underpayment. These are defined as continuing injuries under section 89 of the Act, as defined in [**Kenya National Private Workers Union v Khagrams [2026] KEELRC 1577 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1577/eng%402026-06-11)**.** The claim of such nature should be addressed within 12 months from the date of cessation. Employment terminated on 30 June 2022. The appellant can only seek such injury in underpayment and house allowance within the provisions of section 89 of the Act for 12 months only. From the gross wage of Ksh. 17,481.85, the appellant was paid Ksh. 8,000 per month. The underpayment in wages, inclusive of house allowance, is Ksh. 9,481.85 x 12 = Ksh. 113,782.20. Regarding the severance pay claim, there is no redundancy notice. The unfair termination of employment is addressed and redressed. Regarding the claimant's leave days, under section 28 of the Act, this is a right of every employee, amounting to 21 days annually. However, leave should not be accrued beyond 18 months under section 28(4) of the Act. In this regard, the applicant is entitled to only 33 days, based on the basic wage of Ksh. 15,201.65 all due leave pay Ksh. 16,721.81. Regarding the claim for public holidays, these are special days published by the Minister. A general claim for 4 years can't suffice. The employee must state the public holidays on which he was at work. A certificate of service is due at the end of employment pursuant to section 51 of the Act. On these findings, the appeal has merit. The appellant is entitled to costs before the trial court and in this appeal. **Accordingly, judgment in Ruiru CMELRC No. E031 of 2025 is hereby set aside. Judgment is entered for the appellant in the following terms:** 1. **Termination of employment was wrong, unlawful and unfair.** 2. **3 months' compensation Ksh. 52, 445.70.** 3. **Notice pay Ksh. 17,481.85.** 4. **Underpayments inclusive of house allowance Ksh. 116,182.20.** 5. **Leave pay Ksh. 16,721.81.** 6. **Certificate of service.** 7. **Costs for the appeal and the trial court.** **And** **The findings above shall apply in the consolidated appeals ELRCA E413 of 2025 and ELRCA E412 of 2025.** **Delivered in open court this 29th day of June 2026** **M. MBARŨ** **JUDGE** **In the presence of:** **Court Assistant: Samuel Maruga** **…………………………………… and …………………………………..…**