https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1515

**REPUBLIC OF KENYA** **NAIROBI EMPLOYMENT & LABOUR RELATIONS COURT** **ELRCA APPEAL NO. E146 OF 2023** **PETER MURIMI GACOKI …………………………..…….… APPELLANT** **-VERSUS-** **SIKI GENERAL CONTRACTORS ………………………..RESPONDENT** **(*Being an Appeal from the Judgment and Decree of Hon. Paul K. Rotich, Senior Principle Magistrate in Nairobi in MC. ELRC NO. 2031 of 2022 delivered on the 26th July, 2023*.)** **JUDGMENT** 1. Through the Memorandum of Appeal dated 8th August, 2023 the Appellant appeals against the entire Judgment of Honourable Paul K. Rotich delivered on 26th July,2023. 2. The Appeal was based on the grounds that: 1. ***The Learned Trial Magistrate erred both in law and fact in dismissing the Appellant’s case on grounds that it was incumbent upon the Appellant to prove that he was employed on regular basis and not on needed/casual basis.*** 2. ***The Learned Trial Magistrate erred both in law and fact by failing to consider that it was never in dispute that the Appellant worked for the Respondent for a duration of five (5) years and six (6) months. Therefore, the Appellant qualifies as an employee under section 37 of the Employment Act, on conversion of casual employment to term contract.*** 3. ***The Learned Trial Magistrate failed to consider proof of employment relationship was evidence in the Claimant’s bundle of document–Delivery note dated 13th September 2019, 8th May 2021 and invoice signed by Claimant dated 14th February 2020.*** 4. ***The Learned Magistrate erred in fact in finding that the Appellant failed to prove that his monthly salary was at a range of Kshs. 18,000/=.*** 5. ***The Learned Trial Magistrate failed to consider the Appellant proved his salary in his Mpesa Statement which contained his salary of August 2021, paid in 4 equal instalments of Kshs. 5,293/= on 9th ,14th, 21st and 28th August 2021, totalling to Kshs. 21,172/= and September salary paid in 4 instalments of Kshs. 4,593/= on 4th, 11th, 18th, 25th September 2021 totalling to Kshs. 17,979/=.*** 6. ***The learned Trial Magistrate erred in fact by finding that the Appellant failed to adduce sufficient evidence to prove that he worked as storekeeper. The Trial Court failed to consider the Claimant’s witness statement on duties assigned to him, Claimant’s document which contained two sample delivery notes and invoice signed by the Claimant.*** 7. ***The Learned Magistrate erred in law by failing to consider section 74 of the Employment Act on the responsibility of the Employer to provide Employment records.*** 8. ***The learned Magistrate erred both in law and fact by failing to consider the Respondent made no effort to communicate with the Appellant after abruptly informing him not to report to duty, as such the Appellant’s termination was unfair and unlawful.*** 9. ***The learned Magistrate erred both in law and fact by failing to consider that the Appellant made efforts to demand his unpaid salary for 17 days worked in the month of September 2022, but to no avail. The Respondent did not produce any evidence of having paid the Appellant’s claimed unpaid salary therefore the Appellant is entitled to the same.*** 10. ***The learned Magistrate erred both in law in proceeding under the wrong principles of Employment and Labour Laws.*** 11. ***The learned Magistrate erred in law and fact by failing to consider the Appellant’s monthly salary of Kshs. 18,000/= as a store keeper, was below the stipulated minimum salary under the Regulation of wages (General)(Amendment) Order, 2018. A Store Keeper’s minimum monthly pay is stipulated to be Kshs. 20,904.90/= exclusive of housing allowance and minimum daily pay is stipulated to be Kshs. 1,005.10/= inclusive of housing allowance.*** 12. ***The learned Magistrate erred both in law and fact by failing to award the Appellant the sum of Kshs. 11,900.00/= on account of unpaid salary for 17 days worked in the month of September 2022.*** 13. ***The learned Magistrate erred both in law and fact by failing to ward the Appellant the sum of Kshs. 104,576.40/= on account of underpayments accrued for the last 3 years worked.*** 14. ***The learned Magistrate erred both in law and fact by failing to make a gratuitous award in favour of the Appellant for the sum of Kshs. 288,487.68/= on account of compensation equivalent to 12 month’s salary for unfair and /or wrongful dismissal or unlawful termination.*** 15. ***The learned Magistrate erred both in law and fact by failing to award the Appellant the sum of Kshs. 24,040.64/= on account of one month pay in lieu of Notice for unfair and /or wrongful dismissal or unlawful termination.*** 16. ***The learned Magistrate erred both in law and fact by failing to award the Appellant the sum of Kshs. 40,800.00/= on account of unremitted monthly NSSF deductions.*** 17. ***The learned Magistrate erred both in law and fact by failing to award the Appellant the sum of Kshs. 51,000.00/= on account of unremitted monthly NHIF deductions.*** 18. ***The learned Magistrate erred both in law and fact by in failing to award the Appellant the sum of Kshs. 62,714.70/= on account of leave pay for the last 3 years worked.*** 19. ***The learned Magistrate erred both in law and fact in failing to award the Appellant the sum of Kshs. 149,133.60/= on account having worked during public holidays without compensation.*** 20. ***The learned Magistrate erred both in law and fact in failing to award the Appellant the sum of Kshs. 112,886.46/= on account of housing allowance which the Appellant was in Law entitled.*** 21. ***The learned Trial Magistrate erred both in law and fact in failing to award a Certificate of Service which the Appellant was in Law entitled.*** 22. ***The learned Trial Magistrate erred in law and fact by failing to consider the evidence produced by the Claimant and dismissing the Claimant’s suit.*** 23. ***The learned Magistrate misdirected himself in his analysis, evaluation, interpretation and assessment of the entire evidence tendered by the appellant and thus arriving at a wrong, erroneous and unjust conclusion and judgment.*** 3. The Appellant prayed that this Appeal be allowed, the decision of the learned Magistrate be set aside and this Honourable Court be pleased to substitute with an Order that the Appellant’s suit in the Lower Court be allowed for the prayers sought in the lower court with cost in the Lower Court and on this Appeal to be borne by the Respondent. 4. The Appeal was disposed of by written submissions. **APPELLANT’S SUBMISSIONS** 1. The Appellant’s advocates Magonda advocates filed written submissions dated 26th September, 2025 and on the issue of whether the trial court erred by holding that the Appellant failed to establish continuous or permanent employment that give rise to a labour relationship between him and the Respondent, counsel submitted that on 12th April 2017, the Appellant was employed as a store keeper. He also doubled as a first aider and fireman. On 19th September 2022, he was unlawfully terminated after having worked for five (5) years and six (6) months and that he was never issued with a written employment contract. 2. Counsel contended that the appellant was never a casual employee. His salary was paid both in cash and through Mpesa. He was at times paid by the Respondent’s accountant Mrs. Sarah Njogu. That he received and dispatched goods for the company. He worked at various work station among them being at Bondo Shell petrol station and Bellevue Shell stations. He was at times sent money to make purchases of material by the Respondent procurement manager Mrs. Ester Kiuga. 3. It was further submitted that the 1st Respondent witness stated that the Appellant had been one of the casuals he had been engaging as and when his employer had construction work since 2019. He further stated that he terminated the Appellant’s site engagement because of his habitual drunkenness and insubordination despite several verbal warning and his apologies. 4. The witness went ahead to state that the Appellant did not turn up to site on 17/9/2022, when he resumed on 19/9/2022, he asked him where he was on 17/9/2022. The Appellant arrogantly told him that he had already informed the office, which had become his habit of bypassing his supervisor and going directly to the office to apologize for his misconduct or explain his predicament claiming he knows the business owner personally. 5. The 2nd Respondent witness denounced having known the Appellant. She stated that she did not have in the company official records of employees past or present by the Appellant’s name as such she was a stranger to the Respondent. 6. Counsel contended that it was false, incorrect and dishonest for the 2nd Respondent to allege not having known the Appellant yet she had made several salary payments to the Appellant as reflected by the Mpesa statements. She stated that among his duties included hiring all company staff, paying all staff and if need be, process termination of employment contracts. 7. The 1st Respondent witness statement was clear that the Appellant used to bypass him as his supervisor and go direct to the office to apologize for his misconduct or explain his predicament which clearly tells the 2nd Respondent witness as being dishonest when she purports not to have known the Appellant. 8. The 2nd Respondent’s witness was also dishonest when she purports not to be having in the company records of employee’s, past or present the names of the Appellant as he was a stranger while at the same time the Respondent opted to produce the Appellant’s apology letter dated 10/1/2022. 9. Counsel submitted that the Appellant proved the existence of a contract of service with the Respondent. His case was affirmed by the 1st Respondent witness who was his supervisor. He admitted having engaged the Appellant as and when his employer had construction work since 2019. It was also his statement that he terminated the Appellant on 19th September, 2022. 10. It was submitted that the issue then turned on whether the Appellant was a casual employee and who bears the burden of proving casual employment. Reliance was placed on Section 2 of the employment Act on definition of a casual employee. That a casual employee is engaged for not more than twenty-four hours at a time. His engagement is intermittent and does not assume permanency. It is dependent on availability of work and not continuous. 11. Counsel submitted that the burden of proving casual employment fell on the Respondent. He had to prove intermittency. He had to show when the Appellant worked and did not work, what was the nature of the Appellant’s job that only required him to work for some days and not others. Reliance was placed on Section 10(7) of the Employment Act which puts an obligation to the employer to prove the fact that the Appellant was a casual employee. That this position was reiterated in the case of **Jackson Mururi Wathigo t/a Murtown Supermarket vs Lilian Mutune [2021] eKLR.** 12. Counsel further submitted that the respondent never produced any employee’s attendance records. The Mpesa statement showed payments were never made on a daily or weekly basis and that the Respondent failed to prove by way of evidence that the Appellant was engaged intermittently and not for a continuous period exceeding three months. That the lower court erred by shifting the burden to establish continuous or permanent employment to the Appellant. The evidence supported the Appellant’s case that he was never a casual employee but a permanent employee. 13. On the issue of whether the Appellant was entitled to prayers sought on unpaid salary counsel submitted that on 19th September 2022, the Appellant was terminated. He was claiming unpaid salary arrears for the 17 days that he worked in the month of September 2022. The Mpesa statement showed that he never received any money after being terminated and the Respondent never filled any payslip or payment record to controvert this claim hence the Appellant was entitled to payment for his services. 14. On Salary Underpayments, it was submitted that the Appellant was orally employed. He was paid a monthly salary of Kshs. 18,000/= as at the time of his termination. He was never issued with a payslip however, his salary was paid both in cash and through Mpesa. The Respondent never disclosed the Appellant’s salary. It was the 1st Respondent’s witness statement that among his duties included paying site casuals. When the 1st Respondent was not available, he requested the office to deliver cash to site and pay or pay through Mpesa. 15. That the 2nd Respondent witness statement confirmed that payments were made both in cash and through Mpesa. No records for pay slip or cash had been adduced by the Respondent and no casual or permanent employee’s attendance sheet were produced. The Appellant worked mostly as a store keeper. 16. The Regulation of Wages (General) (Amendment) Order, 2018 provides for a minimum salary of Kshs. 20,904.90/= (exclusive of housing allowance) for a store keeper. Counsel placed reliance on section 9 of the Employment Act, which obliges an employer to reduce into writing a contract of service which is more than 3 months or a number of working days in aggregate amounting three or more months and that the Respondent failed to prove the nature of Appellant’s employment as required under section 10(7) of the Employment Act. 17. It was further submitted that the terms of a contract must be in line with the law. The Mpesa statement showed varying payments. The Respondent never explained the reason for the variance. He never adduced any employment contract or payment records that rebut the Appellant’s payments as alleged or reflected by the Mpesa statement. 18. On one month pay in lieu of Notice counsel submitted that on 17th September 2022, the Appellant fell sick and was admitted to hospital. He notified the Respondent of his sickness. Upon recuperating and reporting to work, he was informed by the Respondent’s supervisor that the Respondent had decided to terminate his services. He was never issued with a notice. The 1st Respondent witness stated that he terminated the Appellant. He never issued a termination notice. The Respondent had not adduced any evidence to support any procedural termination. 19. Reliance was placed on Section 35 of the Employment Act which provided for issuance of a termination notice and that the Appellant was never issued with a termination notice. No internal mechanism for dispute resolution was followed by the Respondent. No board resolution approved the termination of the Appellant. 20. On compensation equivalent to 12 months’ salary for irregular termination, it was submitted that the Appellant was terminated after resuming work yet he had notified the Respondent of his sickness. The 1st Respondent witness stated that he terminated the Appellant because of his habitual drunkdness and insubordination despite several warnings and his apologies. 21. Counsel contended that the Respondent bears the burden to prove reasons for the termination. There is no warning letter, show cause letter, disciplinary hearing or resolution recommending the termination. That the Appellant termination was procedurally irregular and unlawful. He submitted that the learned magistrate never addressed himself to the termination procedures and events surrounding the termination. 22. On unpaid amount for leave not granted it was submitted that the Appellant was never granted leave for the duration that he worked for the company despite asking for leave. He was treated as a casual employee as such denied this benefit. It was not in dispute or controverted that the Appellant was never granted leave. That an employee was entitled to twenty-one leave days after working for twelve consecutive months. 23. Reliance was placed on section 10(3)(a) of the Employment Act on particulars to be included in the employment contract including annual leave. Reliance was also placed on Section 28(1)(a) of the Employment Act which provides for 21 days leave. The Respondent never compensated the Appellant for leave after releasing him. He never adduced any leave forms. No records for leave payments were produced by the Respondent. 24. On Housing allowance, it was submitted that the Appellant was never provided with a housing facility or allowance. He was treated as a casual employee as such was denied a housing allowance. The payment of a housing allowance was a statutory requirement and one that was couched in mandatory terms as per section section 31(1) of the Employment Act. The Respondent did not controvert this claim by way of evidence. A document such as a pay slip was not produced to controvert this claim. 25. Reliance was further placed on the Labour Institutions Act No. 12 of 2007 which provided that an employee is entitled to housing unit or housing allowance at the rate of 15%. That the legal notice 2 of 2018 provides minimum monthly salary for a store keeper at Kshs. 20,904.90/= exclusive of a housing allowance. The Appellant was entitled to a monthly housing allowance of Kshs. 3,135.74/=. That in the instant case the Regulation of Wages order was not adhered to and the appellant’s salary was below the regulations and could not be said to have included a housing allowance. 26. On compensation for working during Public Holidays it was submitted that the Appellant never absconded duty and the only day he couldn’t report to work was when he fell sick. He was never compensated for working during public holidays. This claim was never disputed by the Respondent. No payment record for public holidays worked was presented before court. 27. On unremitted NSSF deduction it was submitted that since the Appellant was treated as a casual none was remitted. No compliance certificate was presented to dispute no remittance. The same argument applied to NHIF 28. Regarding certificate of service it was submitted that this was a right pursuant to section 51 of the Employment Act. The learned Magistrate erred in law in failing to award a Certificate of Service which the Appellant was in law entitled. **RESPONDENTS’ SUBMISSIONS** 1. The Respondents’ advocates Humprey & Co. Advocates filed written submissions dated 30th December, 2025. On the issue of whether the learned trial court erred in dismissing the Appellant’s claimfor failure to prove existence of employer-employee relationship counsel submitted thatthe trial court agreed with the Respondent that the Claimant had not provided any credible evidence to prove employer-employee relationship despite his claim of having worked continuously for a period of 5 years and 6 months. 2. Reliance was placed on Sections 9 (1) (a) and (b) of Employment Act on requirement for reducing contracts of more than three months in aggregate in to writing. That the Appellant despite claiming to have worked for Respondent for period of 5 years and 6 months, he did not provide any evidence to prove compliance with provisions of Employment Act. 3. Counsel further submitted that as observed by the trial court, the Mpesa statements provided by Appellant purporting to prove that he used to be paid a monthly salary of Ksh.18,000.00 by Respondent were not tallying and were lacking in substance. In fact, part of Appellant’s Mpesa statement exhibit confirmed that the appellant was not paid monthly by the Respondent but occasionally and only in two occasions within the claimed employment period of 5 years and 6 months (12/4/2017 to 17/9/2022). That is, in the month of August 2021 Mpesa payment totaling Kshs. 5,293.00, and on different dates in the month of September 2021 Mpesa payments totaling Ksh.13,386.00. There was no verifiable evidence of monthly salary of Ksh.18,000.00 within the alleged employment period of 5 years and 6 months. Further, Respondent’s staff Esther Kiuga Mpesa payment made to Appellant was to buy construction materials on behalf of the Respondent which was also corroborated by Appellant’s own admission in his statement of claim. 4. Counsel submitted that the Appellant failed to provide any verifiable evidence of monthly salary of Ksh.18,000.00 within the alleged employment period of 5 years and 6 months. That doubt on Appellant claimed Kshs.18,000.00 monthly salary can also be inferred from his own ambiguous statement on his Memorandum of Appeal (item 4) where he averred, “trial Magistrate erred in fact in finding that the Appellant failed to prove that his monthly salary was at range of Kshs. 18,000.Further, in item 5 of his Memorandum of Appeal he gave inconsistency figures when he stated that “Appellant proved his salary in his Mpesa statement which contained his salary of August 2021, paid in equal instalments of Kshs.5,293/= on 9th, 14th, 21st, and 28th August 2021, totaling to 21,172/= and September salary paid in 4 instalments of Kshs.4,593/= on 4th, 11th, 18th, 25th September 2021 totaling to Ksh.17,979/=. 5. It was submitted that the Appellant claims of his role as a Store Keeper doubling as First Aider and Fireman, do not exist at Respondent, because such job description (by its application) would strictly require an employee to be constantly stationed at a particular working station to deal with emergencies of accidents and fire breakouts. Which contradicts Appellant claim that he used to be sent out to purchase materials and effect deliveries on behalf of the Respondent to different locations. 6. Further, the documents provided by the Appellant (annexed copies of claimed delivery notes for Bondo and Bellevue petrol station marked “PMG 2 a, b & c”) purporting to prove that he was working for the Respondent do not meet the admissible requirements as they lack mandatory “RECEIVED” official stamping which irrevocably confirms deliveries had been satisfactorily received by intended receiving company. 7. Counsel submitted that the Appellant stated that he fell sick on his way to work and rushed to Uwezo Medical Center and chemist at Maringo shopping center in Makadara area of Nairobi and further, the Appellant stated that he communicated his absence to the Respondent through phone call, followed it up with a WhatsApp message. This could not be substantiated as no printed evidence of WhatsApp message was provided to back up the claim. 8. That the Appellant stated that on the 27/9/2022 he visited the labour office for assistance which office wrote a demand letter to the Respondent who failed to act on the demand. That the Appellant revisited the labour office on 4/10/2022 where he was handed a conciliation invitation letter inviting the Respondent for conciliation on 11/10/2022 which date the Respondent never showed up. These assertions could not be substantiated as no copies of Labour Office Demand Letter nor Conciliation Invitation Letters were provided to back up the claim. 9. It was further submitted that the Appellant stated that the Respondent failed to produce any cash payment records, work attendance sheet, gate pass records, pay slips or employees contracts to support their claim that they engaged the Appellant on casual basis. In this regard, the Appellant seemed to fail to realize such requirement on part of the Respondent only applied when there was a dispute on a term of employment contract (which the Respondent had categorically denied), this however did not release the Appellant from the burden of proving his case. 10. Counsel relied on the case of **Kudheiha Workers v Esther Njoroge (2021) eKLR** to submit that the obligation to produce employment records only arises where employee-employer relationship is proved. The Respondent averred that it remained a stranger to the Appellant’s claim of employment relationship, hence, the alleged termination, as no evidence sufficiently produced to confirm compliance with Sections 9 (1) (a) and (b) of Employment Act considering the alleged employment period of 5 years and 6 months. 11. Further, the documents produced to wit Mpesa Statements and Delivery Notes do not meet the threshold of confirming existence of employment relationship. Counsel relied on the case of **Kudheiha Workers v Esther Njoroge (2021) eKLR** (supra), that the employee needs to establish employer-employee relationship first. 12. Counsel submitted that in the circumstances, the trial Court was justified in finding that the Appellant failed to place before it sufficient material evidence to prove employer-employee relationship as envisaged by Sections 9 (1) (a) and (b) of Employment Act,2007, more so, considering the alleged employment period of 5 years and 6 months. **DETERMINATION.** 1. The court has considered the pleadings 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 gave rise to employer-employee 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. 1. The Appellant was aggrieved by the whole judgment and fronted 23 grounds of appeal which this court will condense in to two issues: - 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 hence he was not unfairly terminated. 3. 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 hence he was not unfairly terminated.** 1. It is important to state at the onset that the principles which guide this court in an appeal from a trial court are now well settled as was for instance stated in the case of **Gitobu Imanyara & 2 others v Attorney General [2016] eKLR** that; “[A]n appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect” Further, this court is awake to **Section 107(1) of the Evidence Act,** which 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. This court is fully aware that it is the responsibility of an employer to document the employment relationship and in certain respects, the burden of proving or disproving a term of employment shifts to the employer. This does not however 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. 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. 4. 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 store keeper which doubled as a First Aider and fireman from 12th April, 2017 to 19th September, 2022 when he was terminated. The Appellant alleged that his monthly salary was Kshs 18,000/=. That he would be paid both by cash and Mpesa. The evidence of the Mpesa showed different amounts which did not add up to the said Kshs 18,000/=. The month of August, 2021 the Appellant was paid Kshs 21, 172/= and the month of September, 2022 Kshs 17,979/=. 2. Whereas it was common between the parties that Ester Kiuga would send the Appellant money for construction materials this court notes that the amounts sent by Ester Kiuga tallied with what was sent by Sarah Njogu in that same amounts used to alternate. 3. It is important to note that a closer scrutiny of the Mpesa statement reveals that he Appellant was paid on weekly basis. The delivery invoices although some did not have stamps, were signed by the recipients which ran from 2019 to 2021. 4. The Respondent on the other hand alleged that they engaged the Appellant on need basis as a casual labourer in construction site and he was dismissed by the site supervisor for his habitual drunkardness and that the Mpesa statements did not add up and the delivery notes were not valid for lack of stamp of receiving companies and further that there was no role of a store keeper doubled up with first aider and fireman since the Appellant was based on the field and those roles which required him to be based at a particular station would be jeopardized. 5. The court is inclined to find that the Appellant was engaged in the sites where he would receive and dispatch goods as per the delivery invoices. It is also clear the Appellant was engaged on casual basis but paid weekly. Although the Sarah Njogu denied having known the Appellant as their employee the Mpesa messages communicate otherwise as she used to send him money. 6. This court therefore finds that the Appellant proved existence of employment relationship between himself and the Respondent because what was the Respondent sending money for to the Appellant for the two months and the fact that the Appellant used to be paid by cash and Mpesa. Why was the Appellant apologizing for been drunk if he was not an employee? How did he get the delivery notes in the letter heads if not from the Respondent? Since the proof was on balance of probability it was more probable that there existed employment relationship than not. 7. 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 in the case of **Krystalline Salt Limited vs Kwekwe Mwakele & 67 Others [2017] eKLR** defined the different engagements as follows: - "*The Employment Act recognizes four main types of contracts of service: contract for an unspecified period of time, for a specified period of time, for a specific task (piece work) and for casual employment..............The decision to elect which form of employment to go for, either as an employee or employer will depend on a number of factors, but the dominant consideration is, for the employee, the earnings and other physical conditions of employment, and on the other hand, savings for the employer."* 1. The Appellant who alleged that he worked for 5 years six Months for the Respondent without any written contract could be said to be a casual employee unless the Respondent could illustrate he was on piece rate engagement which was 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. 2. The court is of the view that the Respondent had a duty to produce employment records as per section 74 of the Employment Act to illustrate that the Appellant was not a continuous employee. For instance the Respondent ought to have produced payment vouchers, attendance register to illustrate that the Appellant was not their employee. By law (section 10(7) of the Employment Act), the court will always believe an employee’s word where the contract is oral in nature. 3. The court having found that there existed employment relationship between the parties, will now delve into what remedies are available to the appellant in terms of what was pleaded before the trial court. 4. Concerning the reason for termination, the Appellant alleged that he fell sick on 17th September, 2022 while on his way to work and he was attended to at Uwezo Medical Center and Chemist, Maringo Shopping Center off Jogoo Road Nairobi. He produced the official sick off sheet for that purpose. The Appellant alleged that he communicated the same to the Respondent through phone call followed by WhatsApp message. Whereas the Appellant did not produce the said communication it was clear he was terminated on 19th September, 2022 due that incident although the Respondent alleged that he was terminated by the site supervisor because of being drunk. This reason was not proved and in this case no warning or show cause letter was issued to the Appellant apart from the apology done by the Appellant of coming to work while drunk on 10th July, 2022. He was not subjected to any disciplinary hearing due to the said issue. 5. The Respondent apart from denying employment relationship 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 a finding of unfair termination under section 45 of the Act. 6. 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. 7. 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 19th September, 2022 after resuming work then he discharged his burden and it was upon the Respondent to justify the grounds. 8. This court therefore overturns the trial court finding that the Appellant did not prove a continuous employment relationship and finds that the appellant proved that he had an employee -employer relationship with the respondent and that he was unfairly terminated. **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, naturally 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 on the reliefs available to the Appellant. 2. The Appellant’s salary was also not clear as the Mpesa amounts varied. He claimed his salary was Kshs 18,000/=. The court will base its calculations on the last salary proved of September, 2021 of Kshs 17,979/=. 3. On compensation for unfair termination the court finds that the Appellant is entitled to damages for unfair termination provided for under section 49 of the Act while taking in to account the considerations under section 49(4) such as the period of service and nature of termination which in this case the Appellant had served for around 5 years six months and his termination was unfair. This court awards him 6 Month’s salary as compensation for unfair termination. 4. On the claim for salary for the 17 days in the month of September, 2022 since there was no evidence of the payment of the same the court awards the same but at Kshs 10,188/= as per his monthly salary. The Appellant is also entitled to one -month salary as notice pay since he was terminated without notice as per section 36 of the act. 5. On the claims for underpayments, house allowance and leave pay the same should 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, 2022 and filed his claim in October 2022 hence within the timelines. 6. On the claim for underpayments the Appellant alleged that he worked as a store keeper which doubled as First Aider and Fireman. There was no evidence of what role he played at the Respondent apart from receiving and dispatching goods. It was clear he was engaged on casual basis hence it is hard for this court to discern his role in order to award him his claim under this head. This claim therefore fails. 7. On the prayer for leave days the Appellant is entitled to the same under section 28 of the Act. The Appellant alleged that save for the days he was sick he was always present at work. Whereas the Respondent as the holder of employment records under section 74, did not have such records since the employment was oral; the Appellant is therefore entitled to the same at Kshs 98,884.5/= for the 5 years and six months. 8. On the claim for house allowance which the Appellant claimed for the last three years at Kshs 112,886.46/= this court notes that the Appellant was entitled to housing allowance under section 31 of the Employment Act. The Respondent did not illustrate if the Appellant was housed or his salary was consolidated. The Appellant was entitled to 15% of his salary as housing allowance. The Appellant claimed for three years which is barred by law and interpretation of section 90 of the Act. So long as the claim was filed within 12 months the Appellant was entitled to his full house allowance but since parties are bound by their own pleadings this court will award for the claimed amount of three years at Kshs 97,086/=. 9. The claim of public holidays payment is denied since the same was not properly proved to be awarded by the court. The claims of unremitted NHIF and NSSF deductions are also denied since it was not within the mandate of this court to order such a prayer. The Appellant ought to have prayed for service pay but again since parties were bound by their own pleadings the court could not impose such a prayer on the Appellant. 10. The Appellant is also entitled to certificate of service as provided for under section 51 of the act. 11. **In the upshot the Appeal is found merited and is hereby allowed with costs to the Appellant as follows: \_** 1. **One month’s salary in lieu of notice……Kshs 17,979/=** 2. **Six Month’s salary as compensation for unfair termination …………………………..…….Kshs 107,874/=** 3. **Salary for 17 days in September, 2022………………………………….….……..Kshs 10,188/=** 4. **Underpayments ………………..………...Kshs NIL** 5. **Unpaid leave…………………..…………..Kshs 98,884.5/=** 6. **House Allowance……………………………Kshs 97,086/=** 7. **Unpaid Public Holidays, Unremited NHIF and NSSF…..NIL** **TOTAL KSHS 332,012/=** 1. **It is so ordered.** **Dated at Nairobi this 29th day of May, 2026** **Delivered virtually this 29th day of May, 2026** **Abuodha Nelson Jorum** **Presiding Judge-Appeals Division**