Mithika v Manpower Networks Ltd (Environment and Land Case E601 of 2025) [2026] KEMC 809 (KLR) (27 August 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT MOMBASA** **MAGISTRATES COURT CIVIL** **MCELRC CAUSE NO. E601 OF 2025** **RICHARD MWENDA MITHIKA.................................................................CLAIMANT** **VERSUS** **MANPOWER NETWORKS LTD.............................................................RESPONDENT** **JUDGEMENT** **Introduction** 1. The Claimant, Richard Mwenda Mithika, instituted these proceedings against the Respondent, Manpower Networks Ltd, alleging unlawful and unfair termination of employment. 2. By his Memorandum of Claim dated 5th September 2025, the Claimant averred that he had worked for the Respondent continuously from 1st May 2021 to 2nd September 2024, initially on what he described as an implied contract. He stated that he was engaged as a general labourer and earned a net monthly salary of KShs. 23,486. His case was that on or about 2nd September 2024 his supervisor verbally informed him that his employment had been terminated without assigning any reason, issuing notice or affording him a disciplinary hearing. 3. The Claimant therefore sought: 4. Two months' salary in lieu of notice: KShs. 23,486 × 2 = KShs. 46,972; 5. Service pay: KShs. 11,743 × 3 = KShs. 35,229; 6. Compensation under section 49 of the Employment Act equivalent to twelve months' salary: KShs. 23,486 × 12 = KShs. 281,832; 7. A certificate of service; 8. Costs and interest. 9. In his witness statement, the Claimant reiterated that he had not received any complaints regarding his work, warning letters or disciplinary notices before the alleged termination. He maintained that he had been neither heard nor paid his terminal dues. 10. The Respondent resisted the claim. Its case was materially different. It denied that the Claimant had been continuously employed from 1st May 2021 to 2nd September 2024 or that he earned a fixed monthly salary of KShs. 23,486. The Respondent asserted that it had been contracted by Tata Chemicals Magadi to manage casual labour at its premises and that the Claimant was engaged as work arose, on a piece-rate/need basis rather than under a continuous monthly contract. 11. The Respondent further pleaded that its contract with Tata Chemicals Magadi came to an end on 31st August 2024, that the Claimant was notified of the same, and that another outsourcing company subsequently took over. According to the Respondent, the Claimant continued to work at the Tata Chemicals site under the incoming company. It therefore denied that the Claimant had been unfairly dismissed. 12. The Claimant filed a Reply to the Response in which he joined issue with the Respondent, reiterated his Memorandum of Claim and put the Respondent to strict proof of the allegations contained in the Response. The evidence and documentary record 1. It is common ground from the pleadings and documentary material that the Claimant performed work associated with the Respondent at the Tata Chemicals Magadi site. The real controversy is the nature, continuity and legal character of that engagement and the circumstances under which it came to an end. 2. The Claimant produced M-Pesa statements showing numerous payments over the period in question. Some entries are expressly described as salary payments from Manpower Networks Ltd. The payments were, however, in varying amounts rather than an identical monthly sum. 3. The Claimant also produced an NSSF member contribution statement, which he relied upon as evidence that the Respondent was making statutory contributions for him over an extended period. 4. An employment application form bearing the Claimant's particulars and associated with Manpower Networks Ltd was also produced. It dates from around April 2021, close to the time when the parties agree that the Respondent commenced managing labour at the Tata Chemicals site. 5. On its part, the Respondent produced a substantial bundle containing, among other documents, a Letter of Engagement, a leave form, weekly payrolls and numerous daily casual engagement sheets. 6. The Letter of Engagement is particularly significant. It offered the worker non-regular employment as a General Operative at the Tata Mombasa worksite. It stated that: 7. Engagement would be on a piece-rate basis depending on available activities; 8. Every occasion on which the employee worked would constitute a separate engagement which ceased at the end of that day; 9. There was no guarantee of ongoing or regular work; 10. Reporting to the waiting area did not guarantee actual employment on a particular day; 11. Work would be allocated when available; and 12. Remuneration would be calculated according to specified piece rates. 13. The employee acknowledgement appearing on the document was signed and dated 1st April 2021. The remuneration schedule in the Letter of Engagement contained piece rates including payment per tonne and per TEU. The letter further provided that the worker would be paid at the end of each week for the days worked during that week. 14. The Respondent also produced extensive Daily Casuals Engagement Sheets for different work stations and shifts. They recorded workers engaged for particular dates, the nature of the work, contact and identification particulars, tonnage where applicable and signatures. The records continued through the latter part of August 2024, including records dated 24th, 25th and 28th August 2024. 15. There was additionally a leave form for ten days' annual leave. The Respondent's witness, Edwin Shamalla, explained that employees who had been reporting to the site for six months and above were given ten days' leave and KShs. 5,000 even though, according to the Respondent, this did not mean that they worked continuously on every day. 16. Edwin Shamalla, the Respondent's Operations Coordinator, stated that the Respondent was a labour outsourcing company and had been awarded the Tata Chemicals Magadi contract from 1st April 2021 to 31st August 2024. He described the casual labour tasks as including loading and offloading soda ash, packing, palletising, weight checking, housekeeping, belt attendant duties, warehouse clerical duties and mobile equipment operations. 17. Mr. Shamalla stated that there were essentially two forms of remuneration: daily-rate work and piece-rate work. Payroll was prepared weekly according to the number of days worked or volume of work performed. He maintained that there was no guaranteed continuous employment. 18. He further testified that NSSF dues were remitted and were calculated according to the monthly gross pay arising from the number of days worked and payments received. **Parties' submissions** 1. The Claimant submitted that, whatever terminology the Respondent used, the actual relationship had continued for approximately three years and had therefore ceased to be casual employment. 2. He relied substantially on section 37 of the Employment Act and argued that continued engagement converted the relationship by operation of law into regular employment. 3. The Claimant emphasised the M-Pesa records, regular NSSF contributions, weekly payments and the leave form as circumstances inconsistent with a truly isolated day-to-day engagement. 4. He relied, among others, upon authorities cited in his submissions including Kitui Flour Mills Limited v Mltambo & another, Joseph Maina Mwangi v Ocean Bar Hotel & Boarding, Chemelil Sugar Company v Ebrahim Ochieng Otieno & 2 Others, Silas Mutwiri Ngugi v Multi-Care Handling Services Limited and Kesi Mohamed Salim v Kwale International Sugar Co. Ltd, on the conversion of casual employment. 5. The Claimant further submitted that the Respondent had not proved a valid reason for terminating his employment and had not complied with sections 41, 43 and 45 of the Employment Act. 6. The Respondent, on the other hand, argued that the Claimant was not a casual employee within the ordinary meaning contemplated by section 37, but a piece-rate worker, whose remuneration was calculated by reference to work actually done. 7. The Respondent relied upon the signed Letter of Engagement, the varying M-Pesa payments, weekly payrolls and daily engagement sheets. 8. It also relied substantially upon Nzili & 2 others v Association for the Physically Disabled of Kenya (APDK) [2026] KEELRC 549 (KLR), Bollore Transport and Logistics Kenya Limited v Masila & Another and Krystalline Salt Limited v Kwekwe Mwakele & 67 others, for the proposition that casual employment and piece-rate employment are legally distinct. 9. The Respondent further relied on West Kenya Sugar Company Limited v Chilande [2024] KEELRC 2119 (KLR) on the need for an employee asserting conversion to establish the actual continuity of the work performed, rather than merely pointing to a long period between first and last engagements. **Issues for determination** 1. Having considered the pleadings, evidence, documentary material and submissions, I consider the following issues to arise for determination: 2. What was the nature of the employment relationship between the Claimant and the Respondent? 3. Did the Claimant establish continuous employment capable of conversion under section 37 of the Employment Act? 4. Did the Claimant prove that he was unfairly terminated on 2nd September 2024? 5. Is the Claimant entitled to notice pay? 6. Is the Claimant entitled to service pay? 7. Is the Claimant entitled to compensation for unfair termination? 8. Is the Claimant entitled to a certificate of service? 9. Who should bear the costs? Nature of the employment relationship 1. There is no serious dispute that the Claimant rendered services connected with the Respondent over an extended period. The crucial question is whether the evidence establishes a continuous monthly contract, as pleaded by the Claimant, or a piece-rate arrangement dependent upon availability of work, as contended by the Respondent. 2. The Court must determine the relationship from the evidence rather than merely from the labels employed by either party. The Letter of Engagement is direct documentary evidence concerning the terms upon which the relationship commenced. It specifically described the work as non-regular and piece-rate employment and stated that each engagement was dependent upon availability of work. 3. More importantly, the payment structure in the letter was calculated by output. Payment was expressed per tonne or per TEU for particular activities and was payable weekly. The Claimant did not disown his signature on that document or demonstrate that a subsequent written contract replaced it. 4. The M-Pesa statements do not establish a fixed monthly wage of KShs. 23,486. To the contrary, the statements reveal payments in varying amounts. The Respondent's explanation that the variations were attributable to different quantities or days of work is therefore consistent with the documentary payment records. 5. The weekly payrolls and daily engagement sheets similarly show that the Respondent maintained records according to particular workers, dates, shifts, work categories and output. They are consistent with an arrangement in which work was allocated according to operational requirements. 6. I have considered the Claimant's argument that the NSSF contributions and grant of annual leave demonstrate regular employment. Those circumstances certainly establish that the relationship was not fleeting or insignificant. They demonstrate that the Respondent had a sustained employment association with the Claimant and made statutory contributions for him. They do not, however, necessarily alter the method by which work was allocated and remuneration calculated. 7. In particular, the fact that a piece-rate worker receives statutory contributions does not by itself transform piece work into fixed monthly employment. Similarly, the grant of leave to workers who had been reporting to the site for extended periods was explained by the Respondent and is not, by itself, sufficient to displace the express remuneration and engagement structure contained in the signed Letter of Engagement. 8. I therefore find, on the balance of probabilities, that the Claimant was engaged by the Respondent principally on a piece-rate and work-availability basis. Whether section 37 converted the relationship 1. The Claimant placed great reliance on section 37 of the Employment Act. Section 37 provides protection to persons engaged as casual employees who, by reason of the duration and continuity of their work, cease in substance to be genuinely casual workers. 2. I agree with the principle advanced by the Claimant that an employer cannot avoid statutory employment protections merely by continuously referring to a long-serving worker as a "casual". What must, however, be established is that the particular statutory threshold for conversion has been met. 3. The difficulty in the Claimant's case is two-fold. First, the documentary material establishes that the Claimant was remunerated by reference to work or output and not by a fixed monthly salary. Piece-rate employment is a recognised form of employment and is not synonymous with casual employment. 4. The authorities relied upon by the Respondent, particularly Krystalline Salt Limited v Kwekwe Mwakele & 67 others and the later decision in Nzili & 2 others v Association for the Physically Disabled of Kenya, underscore the distinction between casual employment and piece-rate employment. 5. Secondly, even if the Claimant's engagement were to be treated as casual for purposes of section 37, it was still necessary for him to demonstrate the actual continuity of the work performed. The fact that payments or engagements occurred at different points from 2021 to 2024 does not automatically establish that the Claimant worked continuously throughout every intervening period. 6. The Claimant's M-Pesa evidence demonstrates repeated payments. The NSSF evidence demonstrates statutory remittances. Those records establish a recurring employment relationship but they do not, without more, establish the precise continuous working days necessary to displace the Respondent's evidence that the Claimant was engaged according to work availability. 7. The approach in West Kenya Sugar Company Limited v Chilande, as placed before this Court, is instructive: where conversion is asserted, evidence showing the actual pattern and continuity of work is material. 8. The Respondent, on the other hand, produced daily engagement records and payrolls demonstrating fluctuating work allocation. 9. The Court therefore finds that the Claimant has not proved, on a balance of probabilities, that his engagement converted under section 37 into the fixed monthly contract pleaded in the Memorandum of Claim. I equally find that he has not proved that his contractual remuneration became a fixed salary of KShs. 23,486 per month. Whether the Claimant proved unfair termination 1. The Claimant maintains that on 2nd September 2024 his supervisor verbally informed him that his employment was terminated. The Respondent denies that there was such a dismissal. Its explanation is that its labour-outsourcing engagement at Tata Chemicals Magadi expired on 31st August 2024 and its role at the site ceased. 2. Section 47(5) of the Employment Act places the initial burden upon an employee alleging unfair termination to establish the fact of termination or wrongful dismissal, after which the employer must justify the grounds for termination. 3. The question is therefore not merely whether the Respondent has demonstrated a fair reason. The Court must first be satisfied that the particular termination alleged by the Claimant occurred. 4. The Claimant's allegation is that a supervisor verbally dismissed him on 2nd September 2024. No termination letter was produced, which is understandable given his case that the communication was verbal. 5. However, the surrounding evidence is material. The Respondent's engagement records continued through late August 2024. Its witness testified that the underlying outsourcing arrangement ended on 31St August 2024. More significantly, the employment arrangement proved before the Court was one in which there was no guarantee of work on any particular day and individual engagements were dependent upon availability of work. 6. Once the Court has rejected the Claimant's contention that he had a fixed continuous monthly contract, the mere fact that Manpower Networks did not allocate further work after its involvement at the Tata Chemicals site ended does not, without more, establish the unfair termination of the continuous contract pleaded by the Claimant. 7. I have also considered the Claimant's submission that the Respondent did not exhibit satisfactory proof of the expiry of the Tata Chemicals contract. Indeed, although the Respondent's list of documents referred to the Tata Chemicals contract, the material placed before Court and relied upon principally comprised the engagement letter, payrolls, leave record and engagement sheets. 8. The absence of the underlying Tata contract weakens the Respondent's evidentiary case regarding the precise contractual expiry date. It does not, however, relieve the Claimant of the initial obligation of establishing the dismissal alleged under section 47(5). 9. The Respondent's evidence that its own engagement at the Tata site came to an end is also consistent with the pattern of daily engagement records terminating at the end of August 2024. 10. The Claimant did not produce evidence from Tata Chemicals, the alleged supervisor or the successor labour contractor to demonstrate that Manpower Networks terminated an existing continuing contract on 2nd September 2024 as opposed to ceasing to offer further piece-rate engagements. I therefore find that the Claimant has not discharged the initial burden of proving the unfair termination pleaded. 11. Having reached that conclusion, the procedural requirements in sections 41, 43 and 45 cannot be considered in isolation as though the existence of a dismissal had already been established. 12. Sections 41, 43 and 45 would undoubtedly apply where an employer terminates a qualifying contract of service for misconduct, poor performance, incapacity or another employer-initiated reason. But those provisions cannot create a dismissal where the Claimant has not first demonstrated that the contract pleaded existed and was terminated in the manner alleged. Accordingly, the prayer founded upon unfair termination cannot succeed. 13. Notice pay- The Claimant seeks two months' pay in lieu of notice, calculated at KShs. 23,486 per month. The claim encounters two separate difficulties. First, the Court has found that the Claimant did not prove a fixed monthly salary of KShs. 23,486. Secondly, no contractual provision was identified entitling the Claimant to two months' notice. 14. Section 36 of the Employment Act permits payment in lieu of the applicable notice period; it does not, of itself, create a two-month notice entitlement. The signed Letter of Engagement specifically provided that engagements depended upon work availability and were self-contained. The prayer for KShs. 46,972 in lieu of notice is therefore declined. 15. Service pay- The Claimant seeks KShs. 35,229 as service pay. On this issue, the evidence is substantially uncontested that the Claimant was a member of the National Social Security Fund and that contributions were made by or through the Respondent. 16. Indeed, the Claimant relied upon the NSSF statement as evidence of the employment relationship, while the Respondent also expressly acknowledged remittance of NSSF contributions. 17. The Claimant's submissions themselves recognise the statutory exclusion from service pay applicable to employees who are members of NSSF, although they seek to avoid that consequence by alleging gaps in contributions. 18. No satisfactory computation was, however, placed before the Court establishing particular periods for which service pay remained legally due notwithstanding NSSF coverage. 19. The Claimant cannot rely upon the NSSF record to demonstrate a sustained employment relationship and simultaneously disregard that same statutory membership when claiming ordinary service pay, absent proof bringing him within an applicable exception. The claim for service pay is therefore dismissed. 20. Compensation under section 49- The Claimant seeks maximum compensation equivalent to twelve months' salary, being KShs. 281,832. Compensation under section 49 is discretionary and arises where an employee establishes wrongful dismissal or unfair termination. Having found that the Claimant did not prove the alleged unfair termination, the statutory foundation for compensation does not arise. In addition, the monthly remuneration figure of KShs. 23,486 on which the compensation was calculated was itself not sufficiently proved as a fixed monthly salary. The claim for twelve months' compensation therefore fails. 21. Certificate of service- The Claimant also seeks a certificate of service. Unlike compensation, notice pay and service pay, the obligation to issue a certificate of service is not necessarily dependent upon a finding of unfair termination. The evidence establishes beyond controversy that the Claimant rendered services through the Respondent over a period extending from 2021 until 2024 and that the Respondent maintained payroll and statutory records relating to him. 22. Section 51 of the Employment Act requires an employer, subject to the statutory exceptions, to issue a certificate of service upon termination of employment. In the circumstances, although the Court has rejected the Claimant's case that he held the fixed monthly contract pleaded, the existence of an employment relationship between the parties is not seriously disputed. 23. The Respondent shall therefore issue the Claimant with an appropriate certificate of service recording the period during which he rendered services to the Respondent, without characterising the separation as an unfair termination. Conclusion 1. The Court is satisfied that the Claimant repeatedly rendered services through the Respondent at the Tata Chemicals Magadi site over a substantial period. Length of association, however, is not by itself determinative of the contractual character of every engagement. The documentary evidence, especially the signed Letter of Engagement, fluctuating payments, weekly payroll records and daily engagement sheets, demonstrates an arrangement substantially based upon piece work and availability of work. The Claimant did not establish that the arrangement converted into the fixed, continuous monthly employment pleaded in his Memorandum of Claim. Nor did he prove that his contractual salary was KShs. 23,486 per month. 2. Most importantly for the claim founded on sections 41, 43, 45 and 49 of the Employment Act, he did not sufficiently establish that the Respondent terminated a subsisting continuous employment contract on 2nd September 2024 in the manner alleged. The claims for notice pay, service pay and compensation for unfair termination consequently fail. **Final orders** 1. In the result, I make the following orders: 2. The claim for two months' salary in lieu of notice in the sum of KShs. 46,972 is dismissed. 3. The claim for service pay in the sum of KShs. 35,229 is dismissed. 4. The claim for twelve months' compensation under section 49 of the Employment Act in the sum of KShs. 281,832 is dismissed. 5. The Respondent shall issue the Claimant with a certificate of service in accordance with section 51 of the Employment Act within thirty (30) days of this judgment. 6. Considering that an employment relationship existed between the parties and that the dispute principally concerned the legal character of that relationship, each party shall bear its own costs. Orders accordingly. **DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOSFT TEAMS AT MOMBASA THIS 27TH AUGUST 2026.** **……………………………………………….** **EMILY M. MWAMUYE** **SENIOR RESIDENT MAGISTRATE**