Waecon Self Selection Service Limited v Simiyu; Trikand Loss Management Service Limited (Interested Party) (Employment and Labour Relations Appeal E037 of 2025) [2026] KEELRC 1395 (KLR) (15 May 2026) (Judgment)

Waecon Self Selection Service Limited v Simiyu; Trikand Loss Management Service Limited (Interested Party) (Employment and Labour Relations Appeal E037 of 2025) [2026] KEELRC 1395 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1395 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Appeal E037 of 2025 JW Keli, J May 15, 2026 Between Waecon Self Selection Service Limited Appellant and Omar Kusimba Simiyu Respondent and Trikand Loss Management Service Limited Interested Party (Being an Appeal from the Judgment and Decree of the Hon. B.M. Cheloti (PM) delivered at Nairobi on the 26th day of October, 2024 in Milimani CMCC No. 2165 of 2022) Judgment 1.The Appellant herein, being dissatisfied with the Judgment and Decree of the Hon. B.M. Cheloti (PM) delivered at Nairobi on the 26th day of October, 2024 in Milimani CMCC No. 2165 of 2022 between the parties filed a memorandum of appeal dated the 7th of February 2025 seeking the following orders:-a.The judgment of the Learned Magistrate delivered on 26 November, 2024 be set aside in its entirety.b.This Honourable Court finds that the Appellant was not the Respondent’s employer and consequently dismisses the Respondent’s claim against the Appellant.c.The costs of this appeal and of the lower court proceedings be awarded to the Appellant.d.Such further or other orders be granted as this Honourable Court may deem fit and just. Grounds of the Appeal 2.The Honourable Trial Magistrate erred in law and fact by finding that the Respondent was an employee of the Appellant despite the existence of credible evidence to the contrary, including the bank statement produced by the Respondent, which demonstrated that his salary had been processed by the Third Party. The Court failed to properly evaluate the totality of the evidence before making this determination. 3.The Honourable Trial Magistrate erred in law and fact by failing to properly analyse and consider the outsourcing agreement, which clearly outlined the terms under which the Third Party engaged its own employees to provide services. The agreement expressly defined employees as individuals legally employed and under the direct sponsorship of the Third Party, who were not employees of the Appellant in any capacity. The Court’s failure to correctly interpret the legal and contractual implications of this agreement led to an erroneous finding on the employment relationship. 4.The Honourable Trial Magistrate erred in misapplying Section 74 of the Employment Act by imposing an obligation on the Appellant to maintain employment records for the Respondent, whereas such an obligation only applies to an employer. Since the Respondent was an employee of the Third Party, any duty to keep employment records vested with the Third Party and not the Appellant. 5.The Honourable Trial Magistrate erred in disregarding the nature of payments made to the Respondent and the bank statement adduced in evidence, which demonstrated that the Respondent received his salary from the Third Party and not the Appellant. The Court failed to appreciate that this payment was consistent with an outsourcing arrangement. 6.The Honourable Trial Magistrate erred in law and fact in finding that the Appellant could recover damages from the Third Party, thereby presupposing liability on the part of the Appellant without properly establishing an employment relationship. The Court wrongly imposed financial responsibility on the Appellant despite the absence of any direct contractual or statutory obligation. 7.The Honourable Trial Magistrate erred in awarding various monetary claims, including salary underpayment, unpaid leave, overtime, public holidays, house allowance, and service pay, without requiring the Respondent to adduce sufficient evidence to justify the amounts awarded. The decision lacked evidentiary support and was based on mere assumptions rather than proven entitlements. 8.The Honourable Trial Magistrate’s decision, as a whole, was against the weight of the evidence presented and resulted in an unjustified imposition of liability on the Appellant. Background to the Appeal 9.The Respondent filed a claim against the Appellant vide a statement of claim dated the 9th of December 2022, seeking the following orders:-a.A declaration that the Respondent’s neglect, failure or refusal to pay the Claimant’s terminal dues was unfair and unlawful.b.That the Honourable Court be pleased to award the Claimant his dues amounting to Kshs. 763,632.67c.That the Honourable Court do issue such orders and give such direction as it may deem fit for the ends of justice.d.The Respondent to pay the costs of this claim.e.Interests on the sums claimed from the date of filing the case.f.The Respondent be ordered to issue the Claimant with a Certificate of Service as required by the provisions of Section 51 of the Employment Act 2007.(Pages 5-7 and 18-21 of the ROA dated 24th November 2025). 10.In support of his claim, the Respondent filed his list of witnesses dated 9th December 2022, witness statement of even date, and list of documents of even date with the bundle of documents attached (See pages 10-22 of ROA). 11.The claim was opposed by the Appellant who entered appearance and filed a response dated the 5th of June 2023 (pages 23-25 of ROA). They also filed a list of witnesses dated 5th June 2023; witness statement of KIARIE NJUGUNA of even date; and list of documents also of even date with the bundle of documents attached (pages 26-40 of ROA). In addition to the foregoing, the Appellant filed a third party notice dated 5th June 2023 (pages 41-42 of ROA). 12.To counter the third party notice, the Interested Party filed a third party response dated 21st July 2023 (pages 43-46 of ROA). They also filed a list of witnesses dated 21st July 2023; witness statement of Jane Njeri of even date and list of documents (pages 47-49 of ROA). 13.In reply to the third party’s response, the Appellant filed a reply dated 8th August 2023; a supplementary list of witnesses dated 24th November 2023; and a substituted witness statement of Edwin Chege Njoroge dated 25th November 2023 (pages 50-55 of ROA). 14.The Claimant/Respondent’s case was heard on the 30th of November 2023, with the Claimant testifying in the case as PW1. He relied on his filed witness statement as his evidence in chief, and produced his documents as exhibits. He was cross-examined by counsels for the Respondent/Appellant and the third Party, Mr. Kipkoech and Mr. Nyamweya respectively (pages 72-73 of ROA). 15.The Respondent/Appellant’s case was equally heard on the same day, with the Appellant calling one witness Edwin Chege Njoroge to testify on its behalf as RW1. He relied on his filed witness statement as his evidence in chief, and produced the Appellant’s documents as exhibits. He was cross-examined by counsels for the Claimant/Respondent and the Third Party, Ms. Simell and Mr. Nyamweya respectively (pages 74-75 of ROA). 16.The Third Party’s case was also heard on the same day, with the Third Party calling one witness Jane Kinyanjui to testify on its behalf. She relied on her filed witness statement as her evidence in chief. She was cross-examined by counsels for the Claimant/Respondent and the Appellant, Ms. Simell and Mr. Kipkoech respectively (pages 75-76 of ROA). 17.The Trial Magistrate Court delivered its judgment on the 26th of October 2024 partially allowing the Claimant’s claims to the extent of Salary underpayment (Kshs. 23,337.60), unpaid leave for the year 2021-2022, overtime (Kshs. 586,028.52), public holidays for the year 2021-2022, house allowance (Kshs. 72,557) and service pay (Kshs. 16,920), plus costs of the suit (Judgment at pages 78-80 of ROA). Determination 18.The appeal was canvassed by way of written submissions. Both parties filed. Issues for determination 19.The court on perusal of the grounds of appeal was of the considered opinion that the issues by the parties for determination in the appeal were –a.Whether the trial court erred in holding that the Respondent was the Appellant’s employee?b.Whether the trial court erred in granting the Respondent the reliefs sought? Whether the trial court erred in holding that the Respondent was the Appellant’s employee? 20.The grounds of appeal under the issue were as follows–a.That the Honourable Court erred in law and fact by finding that the Respondent was an employee of the Appellant despite the existence of credible evidence to the contrary, including the bank statement produced by the Respondent, which demonstrated that his salary had been processed by the Third Party. The Court failed to properly evaluate the totality of the evidence before making this determination.b.That the Honourable Court erred in law and fact by failing to properly analyze and consider the outsourcing agreement, which clearly outlined the terms under which the Third Party engaged its own employees to provide services. The agreement expressly defined employees as individuals legally employed and under the direct sponsorship of the Third Party, who were not employees of the Appellant in any capacity. The Court’s failure to correctly interpret the legal and contractual implications of this agreement led to an erroneous finding on the employment relationship.c.That the Honourable Court erred in misapplying Section 74 of the Employment Act by imposing an obligation on the Appellant to maintain employment records for the Respondent, whereas such an obligation only applies to an employer. Since the Respondent was an employee of the Third Party, any duty to keep employment records vested with the Third Party and not the Appellant.d.That the Honourable Court erred in disregarding the nature of payments made to the Respondent and the bank statement adduced in evidence, which demonstrated that the Respondent received his salary from the Third Party and not the Appellant. The Court failed to appreciate that this payment was consistent with an outsourcing arrangement.e.That the Honourable Court erred in law and fact in finding that the Appellant could recover damages from the Third Party, thereby presupposing liability on the part of the Appellant without properly establishing an employment relationship. The Court wrongly imposed financial responsibility on the Appellant despite the absence of any direct contractual or statutory obligation. 21.The appellant submitted that the trial court fell into a fundamental error of fact and law by holding that the Respondent herein was the Appellant’s employee. This was the gist of grounds 1-5 in the Memorandum of Appeal. The appellant submitted that the trial court's decision on this issue hinged on an open misapplication of section 74 of the Employment Act. Per the trial court’s reasoning, the Appellant had not produced the Respondent’s Employment records, and this alone invited a negative inference to the Appellant’s detriment. From the outset, the trial court applied the wrong test to the issue and therefore erred in law. Factually, the court was equally wrong as the Appellant could not keep records of a non-employee as postulated in ground 3 of the Memorandum of Appeal. That the right application of section 74 of the Employment Act in the context of establishing an employment relationship, is as described recently in Mmbukha v Osotsi t/a Reliable Cleaning Services (Appeal E161 of 2023) [2025] KEELRC 2769 (KLR) (9 October 2025) (Judgment) at paragraph 49: “…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…” [Emphasis Added] . Based on the above authority, therefore that the trial magistrate drew the wrong implication from section 74 of the Employment Act. Purely on the legal test, there is a distinction between the duty to keep records and the obligation to produce them in court. No implication of an employment relationship can be drawn from the mere absence of an employment contract/records in a party’s list/bundle of documents before a court of law. This is critical in a case where the employment relationship is denied, and by implication, the party alleged to be the employer has no records to produce as the Appellant herein contended. Still on the legal test, section 74 of the Employment Act does not, by its text or necessary implication, shift the burden of proof from the Respondent in the first instance. Contrarily, section 107 (1) of the Evidence Act places the burden of proof squarely on the Respondent, which only shifts on the Appellant upon the production of probable evidence establishing an employment relationship at a prima facie level. Abuodha J in Mmbukha v Osotsi (supra) thus proceeded to hold as follows in paragraph 52: “This court therefore is tasked to find if the Appellant proved on a balance of probability that there existed an employment relationship…” [Emphasis Added] The foregoing implies that the task before the trial court was to weigh the totality of evidence before it and taking a position on a balance of probabilities. It bears noting that the court’s application of section 74 of the Act was completely unfounded, as the parties had placed documentary materials before it to determine the issue of the employment relationship. Even if such materials were missing from either party, the implication would flow from sections 107 (1) and 109 of the Evidence Act to the Respondent’s detriment, rather than section 74 of the Employment Act as erroneously held by the trial court. On the whole, we submit that the right legal test before the trial court as regards the burden of proof was per the Evidence Act, and for all practical purposes, the court was to weigh the evidence on a balance of probabilities rather than make presumptions on the pretext of section 74 of the Employment Act. Aligned with Ground 2 of the Memorandum of Appeal, the trial court’s error was significantly premised on the failure to consider the terms of the outsourcing agreement produced in pages 30-40 of the Record of Appeal. Indeed, the trial magistrate made passing remarks in paragraph 17 of the judgement about the agreement but did not attempt to analyze its contents at all. Refer to page 79 of the record of Appeal. That the contents of the outsourcing agreement, whose validity and subsistence during the Respondent’s engagement is conceded by the Third Party, puts to rest any questions as to who employed the Respondent. Instructively, Clause 4.4 thereon expressly provided that the Third Party would employ, pay, and manage its own employees such as the Respondent herein. Preemptively, clause 1.4 of the same agreement defined an employee as a person employed by and under the direct sponsorship of the Third Party. Refer to pages 31-33 of the record of Appeal. The above evidence by the Appellant displaces any allegations to the contrary by the Respondent and the Third Party. That nothing was placed before the trial court by the Respondent or the Third Party to elicit an inference other than the Appellant’s supposition. Applying the correct legal test on a balance of probabilities, and further aligned with Grounds 2 and 4 of our Memorandum of Appeal, the payments made to the Respondent left an inevitable conclusion that he was employed by the Third party. The Respondent had produced his bank statement which shows that his salary was processed by the Third Party. Besides, in its pleadings and evidence before the trial court, the Third Party had admitted to paying and training the Respondent. The Third Party had further testified that it processed the Respondent’s statutory dues. This was evidence consistent with the Appellant’s averments and the contents of the outsourcing agreement. Nothing, including the Respondent’s alleged transfer letter attributed to the Appellant, had greater weight evidentially. Furthermore, weighing the inculpatory evidence against the Third Party’s denials of its relationship with the Respondent, an inference to the Appellant’s favor would have prevailed. Notably, the Third Party did not produce a single document before the court despite making reference to registers and payrolls allegedly forwarded by the Appellant. Besides, in her oral testimony, the Third Party’s witness purported to deny paying the Respondent, which evidence was completely at variance with the documentary evidence before the court, and its own pleadings. Undoubtedly, the Third Party’s averments and evidence was of dubious authenticity. Refer to pages 75-76 of the Record of Appeal for the Third Party’s witnesses’ contradictions in cross-examination. The same credibility issues befell the Respondent’s case. In the demand letter produced in court, the Respondent had alleged to have been employed as a cleaner in 2018 with a salary of KES 13,950.80. In his witness statement adopted as evidence in chief at the trial, the position changed that he was employed a cleaner with a starting salary of KES 9,000. There was a further shift in the pleadings, which stated that he was employed as a chef with a starting salary of KES 9000. These inconsistencies are not trifling errors. They indicate a significant distance between the Appellant and the Respondent. It is not far fetched to infer that the Respondent was hired by the Third Party, outsourced in various roles elsewhere, and had therefore never worked for the Appellant herein. The trial court could not shut its eyes to these egregious credibility issues, and on an objective view, find against the Appellant. Taking the evidence before the trial court as a whole, we submit that the only discernible employment relationship is between the Respondent and the Third Party. We reiterate our Ground 5 of the Memorandum of Appeal that in the circumstances, the trial court was wrong to presuppose liability on the Appellant and hold that damages would always be recoverable against the Third Party. The correct answer was to impose liability, if at all, on the Third Party. We therefore urge this Honorable Court to find and hold that the trial court erred in holding that the Appellant was the Respondent’s employee. 22.Conversely, the respondent submitted that contrary to the Appellant’s argument at paragraph 4 of their submissions, the trial court’s findings on the Respondent’s employment relationship with the Appellant was not entirely hinged on the failure by the Appellant to produce employment records but rather on the evidence adduced by the Respondent before the trial Court. This being a first Appeal, it is trite that this Honourable Court has the discretion to relook into the evidence before the trial Court and make its own conclusions. The Respondent in his evidence testified that he was employed orally as a Chef on 2nd May 2018 by the Appellant and that his employment was never reduced into writing as required by Section 9 of the Employment Act, 2007. The Respondent’s testimony was corroborated by a transfer letter issued by the Appellant in 2019, moving him from Njenga to Kamulu. This Honourable Court shall notice that this transfer letter is authored by the Appellant and not the alleged third party. It was apparent by this letter that it was in fact the Appellant that had the power to transfer the Respondent and assign him duty. See page 24 of the record of Appeal. That despite the Appellant’s argument before the trial Court being that the Appellant did not employee anyone rather outsourced all its employees, the Appellant’s witness, Mr. Edwin Chege, during cross examination admitted that he himself was employed in 2020 by the Appellant and had not been outsourced. The said witness, Edwin Chege, further admitted that he was indeed employed, long after the Respondent’s employment and transfer and as such his evidence on the Respondent’s engagement was therefore hearsay. Additionally, the alleged outsourcing agreement relied upon by the Appellant was executed in May 2020, two years after the Respondent had already been working for the Appellant. It contains no clause transitioning the Respondent to the Third Party’s employment. Refer to page 35- 45 of the record of Appeal. On cross examination, the Appellant’s witness Edwin Chege, could not explain how come the Respondent was in the Appellant’s employment prior to May, 2020 before the purported outsourcing agreement came into effect. He was at pains explaining how come the Respondent was in the Appellants employment prior to the outsourcing agreement and was even transferred in 2019 by the Appellant from Njenga to Kamulu branch. It is absurd therefore that the Appellant wanted the trial Court to make a finding that the purported outsourcing agreement if at all was valid operated retrospectively and applied to the Respondent even without a transition clause. Further, the bank statement produced by the Respondent as annexed at page 20- 23 of the record of Appeal clearly demonstrates that the Respondent’s salary was paid by the Appellant herein. It is trite that even where a third party is enjoined, it is incumbent upon a Defendant to prove its case against a third party. It is therefore neither here nor there that the third party did not produce any evidence before the trial Court. Further, the Third Party admitted that it only trained the Respondent and paid his salary once because the Respondent’s name had been included in the payroll by the Appellant. That in the same decision cited by the Appellant Mmbukha v Osotsi t/a Reliable Cleaning Services (Appeal E161 of 2023) [2025] KEELRC 2769 (KLR) (9 October 2025. The Court, while finding that there existed an employment relationship between the Appellant and the Respondent, underscored the mandatory requirement on the employer to reduce employment contracts into writing. Contrary to the Appellant’s assertions, even if this Honourable court was to relook at the Respondent’s evidence before the trial Court, it would have arrived at the same conclusion. In light of the above, we urge this Honourable Court to find that the trial court correctly found that the Respondent was the Appellant’s employee and proceeds to affirm that decision. 23.This being a first appellate court, it was held in Selle v Associated Motor Boat Co. [1968] EA 123 that:- “The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the 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 allowance in this respect. In particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.” 24.In the instant case, the trial court found the appellant was the employer of the respondent and not the joined third party. The appellant pleaded that the respondent was employed in 2018. The appellant stated that it had outsourced services vide a third party and produced the outsourcing agreement. The agreement was dated 1st May 2020(page 31 of ROA). The respondent produced before the lower court his transfer letter of 2019 by the appellant to another branch. The appellant relied on the bank statement of the respondent, which indicated the third party processed his salary in 2021(page 17 of ROA). The court found no nexus between the outsourcing contract and the respondent's prior employment. The witness of the appellant admitted that on his employment, he found the respondent in service and that some employees were under the appellant. There was no clause in the outsourcing contract adopting existing employees like the respondent. The third party entered an appearance and denied having employed the respondent. The court finds that the third-party respondent's reflection of salary payment in the bank statement was not evidence of employment. The third party came into effect vide the outsourcing contract of 2020. The respondent was employed in 2018. The respondent proved on the balance of probabilities that he was an employee of the appellant and not the third party. The court finds no basis to interfere with the finding of the trial court that the respondent was an employee of the appellant. Whether the trial court erred in granting the Respondent the reliefs sought? 25.The grounds of appeal under the issue were as follows- That the Honourable Court erred in awarding various monetary claims, including salary underpayment, unpaid leave, overtime, public holidays, house allowance, and service pay, without requiring the Respondent to adduce sufficient evidence to justify the amounts awarded. The decision lacked evidentiary support and was based on mere assumptions rather than proven entitlements. The trial court just awarded the claims as sought without any analysis or justification. 26.On the issue of underpayment of basic salary and housing - The appellant submitted that the basis of underpayment was not justified on account of the contradiction of the respondent having pleaded he was employed as a chef in the claim and in the witness statement as a cleaner. In the submissions, the respondent alluded to having performed dual roles. The court found the respondent adopted his witness statement as his evidence in chief. The respondent in the said witness stated he was employed as a cleaner at Kshs. 9,000 and later the appellant increased the salary to Kshs. 13950.80 exclusive of house allowance (page 11 of ROA). The respondent relied on Minimum Wages Order of 2018 in which the salary of a cleaner is indicated as Kshs. 13,572 exclusive of house allowance. The respondent, having adopted his witness statement as evidence in chief, was bound by it to effect that his employment was of a cleaner. The court then holds that he was underpaid as regards housing only, which is a statutory right under section 31 of the Employment Act, having not been provided with housing. The underpayment award based on the job of cook is set aside, the respondent having adopted his witness statement to the effect that he was a cleaner. The basic salary paid was above the minimum basic wages for a cleaner thus the award for underpayment of basic salary is set aside. The Respondent was not provided with housing. The court upheld the award for house allowance but based on job of a cleaner. The award is under the General Wages Order at a rate of 15% of the basic salary of Kshs. 13950.80 for the period of employment, as pleaded, thus 15/100x13950.80x33 total Kshs. 69,056.46 awarded as house allowance. 27.On claim of unpaid leave, there was no claim of the respondent having applied for leave and the same denied. The court agreed with the appellant that the Respondent could only carry forward 18 months of leave as stated in section 28 (4)of the Employment Act to wit- ‘The uninterrupted part of the annual leave with pay referred to in subsection (3) shall be granted and taken during the twelve consecutive months of service referred to in subsection (1) (a) and the remainder of the annual leave with pay shall be taken not later than eighteen months from the end of the leave earning period referred to in subsection (1)(a) being the period in respect of which the leave entitlement arose’. Annual leave is a statutory right, and the respondent having pleaded not to have taken leave, the employer ought to have produced the leave record. The award for leave for entire period of service is set aside and substituted with leave of 18 months at salary of Kshs. 13950.30 plus 15% house allowance (16,043.42) x 18 months thus Kshs. 24,065.13 awarded as leave in lieu. 28.Award of overtime and public holiday-The trial court awarded the claims for overtime and public holidays as sought without justifications. The claims of overtime and public holidays are in the nature of special damages and ought to be proved strictly. The Respondent pleaded that he worked on all public holidays and for 7 hours overtime all the 6 days of the week for entire period of employment. The respondent asserted that it was the duty of the appellant to produce record of employment under section 74 of the Employment Act. It is true that the employer is the custodian of records of employment, but that is not the same as a duty to produce the records in court. I agreed with the decisions of the court cited by the appellant that section 74 of the Employment Act does not discharge the duty of the claimant to prove his case. In Ochieng & another v Pride Kings Services Ltd (Cause E057 of 2024), Gakeri J held ‘Similarly, the claims for public holidays, working days, overtime and leave days are unsustainable for want of proof as none of the claimants provided particulars for each of the reliefs sought. More significantly, these claims fall under the rubric of special damages and must be specifically pleaded and strictly proved as held in Hahu V Singh Civil Appeal No. 42 of 1983 (185) KLR 716. See also Jackson K. Kiptoo V Attorney General (2009) KLR 657.’’ In the matter of Rogoli Ole Manadiegi -vs- General Cargo Services Ltd (2016) eKLR Justice Rika stated in paragraph 7 ‘The employee in claiming overtime pay however is not deemed to establish the claim for overtime pay by default of the employer bringing to the Court such employment records. The burden of establishing hours or days served in excess of the legal maximum, rests with the employee.’ Before the trial court were allegations that the respondent had worked all public holidays and 7 hours of overtime 6 days a week. The allegation was not supported by any shred of documentary evidence. The respondent did not call a witness to corroborate his evidence. The court warns itself of the danger of a single witness. The Court of Appeal in a similar scenario in Ngunda v Ready Consultancy Limited [2022] KECA 577 (KLR held - ‘As regards the alleged overtime, there was no breakdown of the 5184 hours into the days to which they related. As it were, it would seem that the appellant was engaged in overtime work continuously for the entire 5184 hours, which is neither feasible nor humanly possible. As correctly submitted by the respondent, he who alleges must prove. Since the appellant did not provide any proof that he worked on public holidays or the Sundays, or indeed overtime, contrary to his assertions, the burden could not shift to the respondent to provide further evidence in this regard. As rightly observed by the learned judge, the appellant did not clock overtime, and there was no record to show that he attended the workplace on public holidays or on Sundays.’ Likewise, I find it was not feasible or humanly possible for the respondent to have worked on all public holidays and 7 hours overtime on all 6 days of the week for entire period of employment. The respondent was a cleaner. Could his services have been required all the time? That is not a reasonable expectation. The trial court did not bother to make a finding on the issue. I find the claim for overtime and public holidays were not proved on a balance of probabilities and set the same aside. 29.Award of Service pay- the same is provided for in section 35 of the Employment Act, to wit: ‘An employee whose contract of service has been terminated under subsection (1)(c) shall be entitled to service pay for every year worked, the terms of which shall be fixed.’ Contrary to the assertion of the appellant, there was no evidence before the trial court that the respondent was under NSSF. The award for service pay is upheld. Conclusion 30.In the upshot the appeal succeeded partially. The court held the respondent was an employee of the appellant. The respondent adopted his witness statement to effect that he was employed as a cleaner, thus not underpaid on the basic salary. The claims for overtime and public holiday were not proved on the balance of probabilities. The Judgment and Decree of the Chief Magistrate’s Court, Employment and Labor Division at Milimani (Hon. Becky Cheloti Mulemia) dated and delivered on 26th November 2024 in MCELRC No. E2165 of 2022 Omar Kusimba Simiyu v. Waecon Self Selection Service Limited is set aside and substituted as follows- Judgment is entered for the claimant against the respondent as follows-a.Unpaid leave in lieu of 18 months – Kshs. 24,065.13b.Unpaid House Allowance Kshs.69,056.46c.Unpaid Service pay Kshs. 16,920d.Certificate of service to issue under section 51 of the Employment Acte.Costs of the suit and interest at the court rate from the judgment date.f.The third party to meet own costs in the suit. 31.The appellant was partially successful. The court ordered each party to bear own costs in the appeal taking into account this was a minimum wages worker and he was not paid his terminal dues on exit. 32.It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH DAY OF MAY, 2026.JEMIMAH KELI,JUDGE.In the presence of:Court Assistant: OtienoAppellant – MwalaghoRespondent- Ms. Small