https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2336

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **APPEALS DIVISION** **APPEAL NO. E149 OF 2024** BETWEEN PATRICK GATUMBU GITHINJI …………………..…………APPELLANT -VERSUS- JAY RAJ ENTERPRISES LIMITED …………………………RESPONDENT (Being an Appeal from the Judgment of Hon. A. N Makau, in Nairobi in MC. ELRC NO. E2275 of 2019 delivered on the 29th July, 2022.) JUDGMENT *(Before Hon. Justice Abuodha Jorum Nelson)* 1. Through the Memorandum of Appeal dated 29th August, 2022 the Appellant appeals against the entire Judgment of Honourable A. N Makau delivered on 29th July,2022. 2. The Appeal was based on 12 grounds in summary that the trial magistrate erred by failing to award the Appellant in accordance with the minimum wage order, placing the burden of availing employment contract on the Appellant, holding that there was no employment contract hence dismissing the Appellant’s prayers while placing the burden of proving employment relationship on the Appellant. That the trial magistrate failed to award the Appellant the salary for days worked in September, 2018, House allowance, notice pay, leave pay, overtime, underpayments, and service pay. 3. The Appellant prayed that this Appeal be allowed with costs, the decision of the learned Magistrate be set aside and this Honourable Court declare that the Appellant’s termination by the Respondent was unlawful, malicious, unprocedural and an infringement on his constitutional rights and award the prayers sought herein of maximum compensation for unfair termination, Notice pay, leave pay, underpayments, salary arrears for September, 2018, house allowance, service pay, and certificate of service. 4. The Appeal was disposed of by written submissions. **APPELLANT’S SUBMISSIONS** 1. The Appellant’s advocates Wetaba, Were & Associate Advocates filed written submissions dated 22nd November, 2025 and relied on among others the case of **Gitobu Imanyara & 2 Others v Attorney General (2016) eKLR** on the role of the first appellate court. 2. Counsel submitted that the parties were bound by their pleadings contained in the record of appeal while relying on the cases of **Galaxy Paints Company Limited v Falcon Guards Limited Court of Appeal case number 219 of 1998** and **Libyan Arab Uganda Bank for Foreign Trade and Development & Anor vs Adam Vassiliadis (1986) UG CA** on this assertion and adding that the judge sits to hear and determine issues raised by parties not examine or conduct investigation on the same. 3. On the issue of the employment relationship counsel submitted that the Appellant was clear that he was working on a daily basis and he was being paid Kshs 21,000/= per month. That the entire record has no single evidence from the Respondent to how they were paying the Appellant. They admitted the evidence existed but they chose not to provide the same. 4. That the trial court reached a wrong finding that the Appellant was not an employee of the Respondent when the Respondent failed to tender evidence to show when the Appellant was employed, what he was earning and that he was a casual employee to enable the Appellant dispute, noting that he was earning a constant salary paid at the end of every month and that he worked daily for the Respondent. 5. It was submitted that despite the Respondent disputing the Appellant’s allegations the burden was placed on the Appellant who had expressly indicated that the employment was not documented and as the custodian of the records confirmed that the payment vouchers were not available before the court. 6. Counsel relied on the case of **Jackson Muiruri Wathingo t/a Murtown Supermarket v Lilian Mutune (2021) KECA 388(KLR**) to submit that the employer who ought to produce employment records of an employee bears the burden to disprove the employee’s allegations on terms of the engagement between the parties. 7. It was submitted that the Appellant proved that he was engaged by the Respondent in May, 2014 to which the employer confirmed by saying that it engaged the Appellant in 2012 as casual labourer. That the Appellant was never given employment contract, voucher or payment of salary and he did not have any written evidence of payment of salary. 8. Counsel submitted that even during cross-examination it came out clear that the Appellant worked on a daily basis hence he was not a casual employee. That there was no evidence that he attended work erratically to move him from permanent employee to casual one. That the trial court erred in analysing this evidence and arrived at a wrong conclusion. That the employment relationship according to the Respondent started in 2012 and was terminated in 2019. That this begged the question of whether it was possible to have a seven-year casual employment relationship without the employer showing the breaks to the employment relationship. That the custodian of employment documents was excused with the weaker party to that relationship tasked with disapproving what had not been proved. 9. Counsel submitted that the contradiction in the employer’s evidence was not questioned by the court when it stated that it had no documents to prove the Appellant was a casual employee/ no documents for casual labourers yet they stated the Appellant used to sign vouchers when done with work daily. That the Appellant testified that no such vouchers existed hence the Respondent was not telling the truth about the employment relationship. 10. It was submitted that the burden on proving that the Claimant was a casual employee remained with the employer and that burden was not discharged given the fact that the Appellant was paid a monthly salary of Kshs 21,000/=, was assigned to motor vehicle registration number KAS 050M and worked daily for the Respondent in the entire period of employment spanning at least 5 years. 11. On the issue of whether the Appellant was terminated unfairly counsel submitted that the Respondent maintained that the Appellant was a casual employee and therefore they did not take him through the necessary procedure for termination. That the Appellant was entitled to due procedure after proving that he was not a casual employee as alleged by the Respondent. 12. Reliance was placed on among others the case of **Walter Ogal Anuro v Teachers Service Commission (2013) eKLR** on requirement for both substantive and procedural fairness before termination. That the termination was unfair and the trial court erred when it dismissed the prayer for unfair termination when the allegation of casual employee came from an employer who failed to prove the defense relied on. Counsel therefore submitted that this court should reverse the trial court’s findings and award as per the claim. 13. On the salary for days worked in September, 2019 counsel submitted that the Appellant testified that he was paid Kshs 21,000/= per month and he worked for 11 days in the month of September, 2019. That despite the Respondent alleging that the Appellant was paid a daily wage there was no evidence of such payment of daily wage. That the Respondent never pointed out the days the Appellant did not work to controvert the Appellant’s assertion that he worked daily for the Respondent hence not a casual employee as alleged by the Respondent. 14. On the claim for house allowance counsel submitted that despite the Respondent alleging that the Appellant was a casual employee, paid a daily wage there was no mention of particulars of the daily wage. That despite refuting the monthly salary of Kshs 21,00/= the Respondent did not mention the alleged daily wage nor evidence of the same or mention of any figure. That section 31 of the Employment Act and Regulation 5 of the Regulation of Wages was clear that house allowance was 15% of the minimum wage which at the time stood at Kshs 30,627/= giving Kshs 243,487/= that was admitted. Reliance was placed on the case of **Matoke v Suchak(Appeal E046 of 2022)(2023) KEELRC 2393(KLR)(5 October,2023) (Judgment)** on the entitlement of house allowance where employee is not housed or paid house allowance. That the trial court made a mistake in dismissing this claim in clear violation of the above provisions. 15. On the claim for notice pay counsel submitted that the having submitted on the unfair nature of the termination the court ought award notice pay. 16. On the claim for leave pay counsel submitted that the Appellant alleged that he was employed in 2014 while the Respondent alleged that he was employed in 2012 and he never went on leave. That the Respondent’s contention that the Appellant never requested for leave was not a requirement under the law while relying on section 28(1) of the Employment Act on leave entitlement of an employee. 17. On the claim for underpayment, counsel submitted that the Appellant was employed as a driver for heavy commercial vehicle and there was no dispute as to allocation of motor vehicle to the Appellant and the same was heavy commercial vehicle. It was submitted that the 2017 minimum wage put the basic salary at Kshs 29,169/= while the period between 2018 May to September, 2018 the minimum wage was Kshs 30,627.45/=. That the Appellant was paid same salary throughout. That the Appellant was terminated in 2019 and the suit filed in 2019 hence the Respondent’s arguments of being time barred were misplaced. 18. Reliance was placed on among others the case of **Matoke v Suchak (supra)** on employer not producing records showing what amount employee was paid as salary. That the burden of proof lay with the employer to show employee was not entitled to terminal dues claimed as per section 10(7) of the Employment Act. That nothing was placed before the trial court as to shift the burden to the Claimant given the express testimony by the Respondent who provided zero evidence before the court. 19. On section 48(1)(a) and (b) of the Labour Institutions Act counsel submitted this section showed the minimum wage orders and the wage regulations were part of the contracts herein. That no pay slip was issued and the trial court found in favour of the Respondent notwithstanding their failure to issue itemized pay statement as provided by the law and in the above case of Matoke. 20. On the burden of proof in employment matters counsel relied on section 10(7) and 74 of the Employment Act which required the employer to keep employee work records and which the Respondent herein concealed to the court. Counsel submitted that the burden to reduce the contract into writing was on the employer and to place this burden on employee to prove working hours when the employer deliberately refused to issue a contract was injustice and this court should place the burden where it was supposed to be on employer. 21. On the claim for service pay counsel submitted that there was no evidence of daily wage by the Respondent hence he was entitled to service pay while relying on the case of **Wanyera v Central Isiolo Investment Limited (Appeal E002 OF 20230 (2024) KEELRC 596 (KLR) (8 March 2024) (Judgment)** on the entitlement to service pay since the Respondent failed to register the Appellant to NSSF, deduct and contribute to the same. **RESPONDENTS’ SUBMISSIONS** 1. The Respondents’ advocates Masaviru & Ketoo Advocates filed written submissions dated 20th February, 2026. Counsel relied on the cases of **Gitobu** **Imanyara & 2 Others v Attorney General (2016) KECA 557(KLR)** and **Peters vs Sunday Post Ltd (1958) EA 424** on the role of the first appellate court and on the issue of whether the learned trial court erred in dismissing the Appellant’s claimcounsel submitted that it was the Respondent’s case that the Appellant was a casual labourer at the Respondent’s work premises since his duties were not continuous and from time to time interrupted. That the Appellant was employed intermittently whenever there was work and therefore his employment depended on availability of work and was paid his wages either weekly or daily basis. 2. Counsel submitted that the Appellant was unable in cross-examination to prove employment relationship by producing letter of employment, pay slips or any documentation showing he had been in continuous employment as alleged. He failed to produce the NSSF statement listed in his documents. That the Appellant produced a demand letter as his exhibit which did not prove or demonstrate when he was retained on permanent basis by the Respondent, it did not show the salary he was drawing from the Respondent and the period of the engagement. 3. It was submitted that the Appellant failed to prove the existence of employment relationship between himself and the Respondent. That he never submitted or furnished the court with any substantive evidence to demonstrate that his casual employment was ever converted or ought to have been converted to a term contract as contemplated at section 37 (1), (a) & (b) of the Employment Act.Counsel relied on sections 107(1) and 109 of the Evidence Act and the case of **E.P. Communications Limited v East Africa Courier Services Limited (2019) KEHC 1298(KLR)** that the Appellant owed the burden of proof on existence of those allegations and that cases are decided on proven facts and law applied to the proven facts. That the Appellant ought to prove that he was employed permanently as alleged and he could not shift this burden to the Respondent as he who alleges must proof and in absence of the proof the Appellant’s case theory was rejected by the court. 4. Counsel submitted that the Employment and Labour Relations Court had in the wake of the Employment Act appreciated that failure to pay wages at the end of the day did not by itself remove one from the ambit of a casual laborer while relying on the case of **Josphat Njuguna v High Rise Self Group (2014) eKLR** on this assertion. That the Appellant having failed to prove the employer-employee relationship, the prayers sought subsequently failed and the appeal ought to be dismissed with costs to the Respondent. **DETERMINATION.** 1. The court has considered the memorandum of appeal, the record of appeal and submissions filed by the both parties herein and notes that the Judgment of the trial court was that the Appellant failed to establish continuous or permanent employment that could give rise to a labour relationship between him and the Respondent. That the Appellant did not prove his case and the claim was dismissed with no orders as to costs. The Appellant was aggrieved by the whole judgment and fronted 12 grounds of appeal however the court only considers three issues as germane to the determination of the appeal, namely: - 2. Whether the trial court erred by finding that the Appellant failed to establish continuous or permanent employment that give rise to a labour relationship between him and the Respondent. 3. Whether the trial court erred in finding that the Appellant was not unfairly terminated. 4. Whether the trial court erred by not allowing the reliefs sought by the Appellant. **Whether the trial court erred by finding that the Appellant failed to establish continuous or permanent employment that give rise to a labour relationship between him and the Respondent** 1. **Section 107(1) of the Evidence Act** provides that: ***“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”*** 1. This was the position in **Anne Wambui Ndiritu vs Joseph Kiprono Ropkoi & Another [2005] 1 EA 334,** in which the Court of Appeal held that: *“As a general proposition under section 107(1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the Court to believe in its existence which is capture* 1. The jurisdiction of the Employment and Labour Relations Court as far as employment matters are concerned is limited by the existence of an employment relationship as defined in law and the court must always satisfy itself on this account before proceeding any further. 2. The court is fully aware that it was the responsibility of an employer to keep documents, the burden of proving or disproving a term of employment in this respect, shifts to the employer. This however does not release the Claimant from the burden of proving their case. Even in cases where an employment contract is oral in nature, the Claimant must still adduce some evidence whether documentary or *viva voce* to corroborate their word. More importantly, where an employee believes that the employer has in its possession some documents that would support the case of the employee, that employee is obligated to serve a production notice in the event he or she presents a claim over a dispute as to the nature and scope of the employment relationship. The burden on the employer is a legal burden which only accrues after the employee has to the required threshold, established the evidentiary basis of his or her case. It is not enough just to allege and the employer automatically assumes the responsibility to disprove the allegation. 3. The burden of proof in civil cases is on a balance of probability. Lord Denning J. in **Miller vs Minister of Pensions (1947) 2 ALL ER 372**, discussing that burden of proof held that that degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. Further in the case of **Transport Workers Union v Euro Petroleum Products & Another [2019] eKLR**, the court stated that – *The Respondents on their part did not produce any documents to prove that the grievants were neither their employees nor engaged on casual basis. However, the Claimant ought to have at the least established that there was an employment relationship between the grievants and the Respondent(s) before the respondent would be called upon to produce records.* 1. The Appellant alleged that he was employed by the Respondent as a driver of heavy commercial vehicle and was assigned to motor vehicle registration number KAS 050M from where he worked from May 2014 to 12th September, 2019 when he was terminated on allegations of theft of materials he was sent to deliver. The Appellant alleged that his monthly salary was Kshs 21,000/=. The Appellant had no documents showing his engagements with the Respondent which he stated was oral in nature. 2. The Respondent on other hand alleged that the Appellant was engaged on casual basis where wages were payable weekly and fortnightly. That he was only engaged on need basis when there was work for him. The Respondent’s witness only alleged that the Appellant was employed in 2012 December as a casual employee and there was no employment relationship. The Respondent never illustrated how much the Appellant was paid on the daily basis or fortnightly as alleged. The Respondent despite mentioning payment vouchers the same were never produced in court. 3. The court is therefore inclined to find that the Appellant was engaged as a driver since the Respondent never disputed issuing him with a motor vehicle and never illustrated if the same was when work arose as alleged. No register or books on attendance were produced by the Respondent to disproof the Appellant’s allegations that he worked daily and he was paid a monthly salary of Kshs 21,000/= 4. This court notes that where employment contract is oral in nature the burden of proof as to the terms of engagement shifts to the employer to disproof a term of employment since under section 10(7) of the Employment Act the employer was obligated to put down the contract in writing stating the terms of employment. The employer is also mandated under section 74 of the Employment Act to produce employment records which in this case it failed to. 5. This court therefore finds that the Appellant proved existence of employment relationship between himself and the Respondent. The Respondent alleged he was employed in 2012 while the Appellant alleged he was employed in 2014 which was a long duration of at least 4 years as per the Appellant’s pleadings. The Respondent’s assertions that the Appellant was hired on casual basis is also defeated by the law which under section 37 converts a casual employee to term employee after working for a continuous period of 3 months. Through this provision then the Appellant became the Respondent’s employee. Section 37(1) of the Employment Act provides as follows: - (1*) Notwithstanding any provisions of this Act, where a casual employee―* *(a) works for a period or a number of continuous working days which amount in the aggregate to the equivalent of not less than one month; or* *(b) performs work which cannot reasonably be expected to be completed within a period, or a number of working days amounting in the aggregate to the equivalent of three months or more, the contract of service of the casual employee shall be deemed to be one where wages are paid monthly and section 35 (1) (c) shall apply to that contract of service.* 1. 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.”* 1. In this case was the Appellant a casual employee forever or he ever converted to a term employee? The Black’s law dictionary 9th Edition defines a casual employment as ‘**work that is occasional, irregular and for a short period.**’ In addition, section 2 of the Employment Act defines a casual employee as ‘**means a person the terms of whose engagement provide for his payment at the end of each day and who is not engaged for a longer period than twenty four hours at a time’** 2. The Appellant who alleged that he worked for 5 years for the Respondent without any written contract could not be said to be a casual employee unless the Respondent could illustrate he was on piece rate engagement which is recognized by the Act. The casual engagement then converted to term contract under the above provision. The trial court therefore erred in finding that there was no employment relationship between the Appellant and the Respondent. The work of a driver performed by the Appellant could not also be that of a casual employee where he was assigned a motor vehicle and a turn boy and paid monthly. **Whether the trial court in finding that the Appellant was not unfairly terminated**. 1. The court after finding there existed employment relationship between the parties proceeds to analyze if the Appellant was unfairly terminated and the remedies available. 2. The common ground on the parties is that on 11th September, 2018 the Appellant was sent to Mlolongo in Machakos county to transport pieces of plywood to the Respondent’s shop in Nairobi where after two days 40 pieces were said to have been lost or missing. Although the Appellant claimed in his statement this happened in 2019 the same is defeated by the demand letter which showed he was terminated in 2018 after this incident. 3. The Respondent alleged that after the Appellant was questioned about the incident he disappeared and never showed up to the place of work. The Respondent then implied that the Appellant absconded his duties but then it never issued any show cause letter or recall the Appellant to work but alleged that the Appellant being a casual worker section 43 on the proof of reasons for termination did not apply to him. 4. The Respondent apart from denying employment relationship it did not address the issue of unfairness of the Appellant’s termination. This court having established that the Appellant was an employee of the Respondent he was entitled to protections under the Employment Act. He could only be terminated with notice and with a fair and valid reason under section 43 of the act which failure to prove the reasons by the employer leads to unfair termination under section 45 of the Act. 5. The Respondent was bound to give the Appellant a fair hearing before termination as a requirement under section 41 of the act. Since the Respondent never illustrated to this court that it had a reason to terminate the Appellant or that fair procedure was followed then the Appellant termination was unfair. 6. Whereas the Act under section 47(5) places the burden on the employee to illustrate that a termination which is unfair occurred the burden shifts to the employer to justify the grounds of the termination. Since the Appellant’s engagement was oral in nature and he illustrated he was terminated on September, 2018 after the alleged theft incident of 11th September, 2018 then he discharged his burden and it was upon the Respondent to justify the grounds. 7. This court therefore overturns the trial court finding that the Appellant was fairly terminated and finds that he was unfairly terminated both substantively and procedurally. **Whether the trial court erred by not allowing the reliefs sought by the Appellant**. 1. The trial court after finding there existed no employment relationship between the parties did not address itself on the reliefs sought by the Appellant however this court having found that there existed an employment relationship and that the Appellant was unfairly terminated will therefore interrogate the reliefs sought and determine if they are available to the Appellant. 2. The Appellant’s salary was Kshs 21,000/= while the minimum wage as at September 2018 was Kshs 30, 627/=. The court will therefore use this minimum wage in calculating the Appellant’s dues. On compensation for unfair termination the court finds that the Appellant is entitled to compensation for unfair termination provided for under section 49 of the Act subject to taking into account the considerations under section 49(4) such as the period of service and nature of termination. In this case the Appellant had served for around 4 years as per his pleadings. Considering, the duration of such service, the respondent still regarded him as a casual employee hence never afforded the benefits of a regular employee to his disadvantage, this court therefore awards him 5 months’ salary as compensation for unfair termination. The Appellant will also be awarded one month’s salary as notice pay as he was terminated without notice as per section 36 of the Employment Act. 3. On the claim for salary for the 11 days in the month of September, 2022 since there was no evidence of the payment of the same the court awards the same as claimed. Concerning the claim for underpayment, house allowance, overtime and leave pay the same ought to be claimed within 12 months after cessation as continuing injuries as per section 90 of the Act. In this case the Appellant was terminated in September, 2018 and filed his claim in December 2019 which was outside the required timelines above. The Appellant tried to date the claim 2018 but the rest of documents were 2019 and even the claim was filed in 2019. These prayers are therefore statute barred and cannot be allowed in the circumstances. 4. Concerning the prayer for service pay the Appellant never attached its NSSF statement to show if the Respondent was making deductions and the Respondent never attached any statement showing that it deducted and remitted the contributions to NSSF. The Appellant did not fall under the exception given under section 35(6) hence he was entitled to service but as claimed in its pleadings for 4 years at Kshs 30,627/= minimum wage. 5. The Appellant is also entitled to certificate of service as provided for under section 51 of the act. 6. **In the upshot the Appeal is found partially merited and is partially hereby allowed with costs to the Appellant as follows: \_** 1. **One month’s salary in lieu of notice……Kshs 30,627/=** 2. **Five Month’s salary as compensation for unfair termination …………………………..…….Kshs 153,135/=** 3. **Salary for 12 days in September, 2018………………………………….….……..Kshs 12,250/=** 4. **Underpayments ………………..………...Kshs NIL** 5. **Unpaid leave…………………..…………..Kshs,NIL** 6. **House Allowance……………………………Kshs NIL** 7. **Service Pay ……………………….…..Kshs 70,678/=** 8. **Overtime pay………………..………..Kshs NIL** **TOTAL KSHS 266,691/=** * 1. **The sums awarded shall be subject to taxes and statutory deductions but shall attract interest at court rates from the date of judgment until payment in full.** 1. **It is so ordered.** **Dated at Nairobi this 28th day of July, 2026** **Delivered virtually this 28th day of July, 2026** **Abuodha Nelson Jorum** **Presiding Judge-Appeals Division**