https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2053

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MOMBASA APPEAL NO. E125 OF 2025 TITUS MUNYOKI ............................................................APPELLANT -VERSUS- JOHN MUNEENI MAKAU T/A J.M. MAKAU & COMPANY ADVOCATES .................RESPONDENT *(Being an appeal from the judgment of Hon. C.K. Kithinji, Principal Magistrate, delivered on 5th June 2025 at Mombasa in MCELRC No. E727 of 2021, Titus Munyoki v. John Muneeni Makau t/a J.M. Makau & Company Advocates)* **JUDGMENT** **A. INTRODUCTION AND BACKGROUND** 1. This is an appeal from the judgment of Hon. C.K. Kithinji, Principal Magistrate, delivered on 5th June 2025 in Mombasa MCELRC No. E727 of 2021, in which the trial court dismissed, with costs, the claim of the Appellant (the Claimant before the trial court) for unpaid salary, statutory dues, terminal benefits and compensation for unfair termination, upon a finding that the Appellant had failed to prove the existence of an employer-employee relationship between himself and the Respondent. 2. Aggrieved, the Appellant lodged a Memorandum of Appeal dated 4th July 2025 setting out nineteen (19) grounds of appeal, which grounds were, in the Appellant's written submissions dated 25th November 2025, consolidated into the issues set out below. **B. THE APPELLANT'S GROUNDS OF APPEAL** 1. The Appellant's grounds of appeal, as consolidated, raise the following issues for determination: **(a)** Whether there existed a contract of service between the Appellant and the Respondent; **(b)** Whether the Appellant resigned from work or was declared redundant; **(c)** Whether the Respondent's defence of an existing partnership was of evidential value; **(d)** Whether the Respondent was a public servant/state officer at the time the Appellant's services were terminated; **(e)** Whether the Respondent adopted an unlawful procedure to terminate the Appellant from employment; **(f)** Whether the Appellant was entitled to the reliefs as pleaded in his statement of claim; and **(g)** Who should bear the costs of the appeal and of the claim before the trial court. 1. In amplification of these grounds, the Appellant contended, principally, that the trial court disregarded documentary and oral evidence said to establish a contract of service, including a consent letter dated 30th July 2020 and a letter dated 14th April 2020 addressed to the Kwale Law Courts, upon which the Respondent was said to be estopped from resiling under Section 120 of the Evidence Act, Cap. 80; that M-Pesa statements and photostat correspondence on record demonstrated payment for, and direction of, the Appellant's services; that the partnership deed of 1st May 2018 relied upon by the Respondent was of no evidential value in the absence of proof of its actual operation or corroborating evidence from the second partner; and that the Respondent had failed to discharge his burden of proving that he was a public/state officer without capacity to employ, notwithstanding the authority relied upon by the Appellant, namely Kitui Petition No. 23 of 2020, John Muneeni Makau v. Charity Kaluki Ngilu, Governor, Kitui County Government & Another. **C. RESPONDENT'S ARGUMENTS AGAINST THE APPEAL** 1. The Respondent opposed the appeal on the following issues: (i) whether the Appellant established and proved an employment relationship between himself and the Respondent; (ii) whether the Appellant is entitled to the reliefs sought; and (iii) who should bear the costs of the appeal. 2. In resisting the appeal, the Respondent submitted, in the main, that the Appellant operated parallel law firms in the names and styles of Nzara Advocates and Munyoki Maheli & Co. Advocates throughout the period of the alleged employment; that the Respondent, being at all material times a state officer in the service of the Kitui County Government, had neither the capacity nor the opportunity to recruit, direct, or dismiss the Appellant, that capacity having been vested by a partnership deed dated 1st May 2018, predating the alleged employment, in Joseph Manzi Munyithya; that the letter of 14th April 2020 addressed to the Kwale Law Courts did not bear the Respondent's name and did not establish the consent alleged; and that the Appellant, being himself an advocate operating his own law practice, failed to discharge the burden placed upon him under Sections 107, 108 and 109 of the Evidence Act, Cap. 80, to prove the existence of an employer-employee relationship. **D. ANALYSIS AND DETERMINATION** 1. This being a first appeal, this Court is enjoined to re-evaluate and re-consider the evidence on record afresh and to draw its own conclusions, bearing always in mind that it neither saw nor heard the witnesses testify, and that it should accordingly be slow to disturb a finding of fact made by the trial court save where that finding is shown to be based on no evidence, or on a misapprehension of the evidence, or on the application of a wrong principle of law (*Selle v. Associated Motor Boat Co. Ltd* [1968] EA 123; *Mwangi v. Wambugu* [1984] KLR 453). Having so re-considered the record and the rival submissions of the parties, the Court makes the following findings. 2. There appears to be no contestation that the Appellant, during the period of the alleged employment — and this he admitted in his own evidence under cross-examination — was at all material times the proprietor of two duly registered legal practice outfits, namely Nzara Advocates, which he incorporated on 25th April 2019, and Munyoki Maheli & Co. Advocates, which he registered on 5th March 2021, squarely within the currency of the alleged employment. In the Court's view, and having regard to the peculiar character of private legal practice — in which an advocate holds himself out to the public as principal and bears personal responsibility for the conduct of his own brief — the running of two independent and duly registered legal practices does not sit easily with, and is not the conduct ordinarily to be expected of, an advocate who was, during that very same period, a salaried employee bound to serve exclusively in another firm. 3. The Respondent's assertion that he was, during the material period, an employee of the Kitui County Government and, by extension, a state officer, and that he was consequently without capacity to personally engage or dismiss an employee of the firm, was not shaken in cross-examination. To the contrary, the Appellant himself admitted this fact, testifying that immediately after his engagement the Respondent made him aware of Kitui Petition No. 23 of 2020, in which the Respondent had sued the Governor and County Government of Kitui for unfair termination, and that it was then that the Appellant learnt that the Respondent was an employee of the County Government of Kitui. This admission, coming as it did from the Appellant's own testimony and going to a central plank of his case, must be accorded due weight, and it materially undermines the claim that the Respondent personally engaged him as an employer in the ordinary sense. 4. The assertion that the Respondent was, at the material time, in a legal partnership with Joseph Manzi Munyithya, trading as Munyithya, Mutugi, Umara & Muzna Company Advocates, under a deed dated 1st May 2018, was similarly not shaken. The Appellant did not deny the existence or genuineness of that deed; his evidence went only so far as to say that he was not personally aware of it at the point of his engagement. Absence of personal awareness of an arrangement is not equivalent to disproof of its existence, and the partnership deed, predating the Appellant's engagement by some eighteen months, stands unshaken as evidence that the management and administration of the firm had, by prior agreement between the partners, been reposed in the second partner. 5. There are, further, material contradictions between the Appellant's evidence in chief and his testimony under cross-examination, contradictions which go to the very root of the claim. First, as to the duration and continuity of the alleged engagement: in his witness statement and evidence in chief the Appellant maintained that he was employed from 10th November 2019 to 12th April 2021, a continuous period of some seventeen months, for which he claimed unpaid salary in full; yet under cross-examination he shifted ground, stating variously that he worked for “about 1 year and 6 months” and, subsequently, that his own pleadings recorded “1 year and 5 months,” before ultimately conceding that he “was paid for roughly 3 months” — an admission squarely at odds with his pleaded claim of Kshs. 800,000 in wholly unpaid salary for sixteen months. Second, as to the exclusivity of his service, the Appellant asserted under cross-examination that he “was not in self-employment,” yet in the same breath admitted that he “remained a signatory to Nzara Advocates” throughout the alleged employment and that he had, in March 2021, incorporated a second firm, Munyoki Maheli & Co. Advocates, well within the currency of that employment. These are not peripheral inconsistencies; they strike at the very heart of the Appellant's case that he served the Respondent as a full-time, exclusively engaged employee for a defined and continuous period. 6. Consequently, having regard to all the circumstances set out above — namely, the Appellant's own admission that he operated two independent and duly registered law firms during the material period; the unshaken evidence that the Respondent was, throughout that period, a state officer without personal capacity to employ or dismiss; the unshaken evidence of a subsisting partnership arrangement under which management of the firm had been delegated to another partner; and the material and unresolved contradictions between the Appellant's evidence in chief and his admissions under cross-examination as to the duration and exclusivity of the alleged engagement — the Appellant did not prove, on a balance of probabilities, that there existed an employer-employee relationship between himself and the Respondent. He did not discharge his legal burden under Section 45 of the Employment Act, read together with Sections 107, 108 and 109 of the Evidence Act, Cap. 80. His case properly failed at that threshold hurdle, and the learned trial Magistrate cannot be said to have erred in so finding. 7. In the Court's view, the written submissions tendered by the Appellant, however industrious, amount at best to argument built upon documents that were themselves contested and upon an oral account that did not withstand cross-examination; they do not constitute proof of an employment relationship, for submissions, however elegantly framed, cannot substitute for evidence. 8. In the result, the appeal, being devoid of merit, fails and is hereby dismissed with costs to the Respondent. **E. DISPOSITION** 1. For the reasons set out above, the Court makes the following Orders: **(a)** The appeal be and is hereby dismissed in its entirety. **(b)** The judgment of Hon. C.K. Kithinji, Principal Magistrate, delivered on 5th June 2025 in Mombasa MCELRC No. E727 of 2021, is hereby affirmed. **(c)** The Respondent shall have the costs of this appeal. It is so ordered. Dated, signed and delivered at Mombasa this 16th day of July 2026. **OCHARO KEBIRA** **JUDGE**