1. Through the Memorandum of Appeal dated 20th June, 2023 the Appellant appeals against the entire Judgment of Honourable Selina N. Muchungi delivered on 16th June,2023.
2. The Appeal was based on the grounds that:
i. The learned Magistrate erred both in law and fact in dismissing the Appellant’s case on grounds that it was incumbent on the Appellant to prove that she was employed on regular basis and not on need/ casual basis.
ii. The learned Magistrate erred both in law and fact in finding that the Appellant was employed on needed basis, when the Respondent failed to prove any records to prove this allegation.
iii. The learned Magistrate erred in law by failing to consider section 74 of the Employment Act on the responsibility of the Employer to prove Employment records.
iv. The learned Magistrate erred both in law and fact by failing to consider that it was never in dispute that the Appellant was employed by the Respondent for a duration of 2 years and 5 months. Therefore, the Appellant qualifies as an employee under section 37 of the Employment Act, on conversion of casual employment to term contract.
v. The learned Magistrate erred in fact by finding that the Appellant failed to prove that she earned a salary of Kshs. 7,000/=.
vi. The learned Magistrate erred in fact by failing to consider that the Appellant was paid her salary in instalments that amounted to Kshs. 7,000/= per month.
vii. The learned Magistrate erred both in law and fact by failing to consider the Respondents’ made no efforts to communicate with the Appellant after abruptly informing her not to report to duty, as such the Appellant’s termination was unfair and unlawful.
viii. The learned Magistrate erred both in law and fact by failing to consider the Appellant made efforts to demand her unpaid salary as was admitted by the Respondents’ who acknowledge to demand letter from the Kenya Human Rights Commission.
ix. The learned Magistrate erred in law in proceeding under the wrong principles of Employment and Labour Laws.
x. The learned Magistrate erred in law and fact by failing to consider the Appellant worked as a house servant thus her minimum monthly pay is stipulated to be Ksh. 13,572.90 exclusive of housing allowance as per the regulation of wages (General)(Amendment) Order, 2018.
xi. The learned Magistrate erred in law and fact by failing to consider the Appellant worked as a house servant thus her minimum daily pay is stipulated to be Ksh. 653.10 inclusive of housing allowance as per the regulation of wagers (General)(Amendment) Order, 2018.
xii. The learned Magistrate erred both in law and fact by failing to arrive at a conclusion that the Appellant monthly salary of Ksh. 7,000 was below the stipulated statutory minimum salary.
xiii. The learned Magistrate erred both in law and fact by failing to make an award in favour of the Appellant for the sum of Ksh. 3,918.60 ostensibly on account of unpaid salary for 6 days worked in the month of June 2022.
xiv. The learned Magistrate erred both in law and fact by failing to make an award in favour of the Appellant for the sum of Ksh. 193, 514.20 ostensibly on account of underpayments accrued for the 2 years and 5 months worked by the Appellant for the Respondent.
xv. 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 Ksh. 162,874.80 ostensibly on account of compensation equivalent to 12 months’ salary for unfair and/or wrongful dismissal or unlawful termination.
xvi. The learned Magistrate erred both in law and fact by failing to make an award in favour of the Appellant for the sum of Ksh. 13,572.90 ostensibly on account of one month pay in lieu of Notice for unfair and/or wrongful dismissal or unlawful termination.
xvii. The learned Magistrate erred both in law and fact in failing to make an award in favour of the Appellant for the sum of Ksh. 15,661.03 on account of severance pay which the Appellant was in law entitled.
xviii. The learned Magistrate erred both in law and fact in failing to make an award in favour of the Appellant for the sum of Ksh. 33,401.21 on account of leave travelling allowance by the Appellant which the Appellant was in law entitled.
xix. The learned Magistrate erred both in law and fact in failing to make an award in favour of the Appellant for the sum of Ksh. 48,862 on account of housing allowance which the Appellant was in Law entitled.
xx. The learned Magistrate erred both in law and fact by dismissing the Appellant suit and directing each party to bear their own costs.
xxi. The learned Magistrate erred both in law and fact in failing to award in certificate of Service which the Appellant was in Law entitled.
xxii. The learned Magistrate erred in law in failing to appreciate the correct evidence adduced and tendered in Court.
xxiii. The learned Magistrate erred both in law and fact by failing to apply the law or the principals of equity.
xxiv. The learned Magistrate misdirected herself in her 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.
xxv. The learned Magistrate erred in law in basing her decision on extraneous factors.
xxvi. The entire decision is contrary to law and a misapprehension of the law.
3. The Appellant prayed that this Appeal be allowed, the decision of the learned Magistrate be set aside, overturned and or reversed 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
5. The Appellant’s advocates Magonda advocates filed written submissions dated 7th May,2025 and on the issue of whether the Appellant was a casual employee counsel submitted that on 1st January 2020, the Appellant was orally employed as a house servant. The agreed monthly salary was Kshs. 7,000/=. Her salary was paid both in cash and through Mpesa. She reported to work every day of the week including weekends and public holidays. On 6th June 2022, she was terminated after having worked for 2 years and 5 months.
6. Counsel submitted that the Respondents on their part averred that the Appellant was engaged on a casual basis and only when need arose. That on maximum they engaged her thrice a week and she worked only half day at an agreed wage of between Kshs. 250-300 per session. Counsel relied on section 2 of the Employment Act on definition of a casual employee.
7. Counsel submitted that where a dispute arises as to the nature of employment, an employer had an obligation to produce employment records failure to which the employee assertion will be taken as the truth. Counsel relied on the case of Abigael Jepkosgei Yator & Another- vs- China Hanan International Co. Ltd [2018] eKLR, where the court asserted this position.
8. The Respondent never adduced any employment records in support of his case that the Appellant was a casual employee. The law does not exempt an employer from keeping records of any casual employee. The Appellant’s Mpesa payment point to the fact that there was a variation in salary. The cash payment records were never adduced in court. The Respondents also never disputed to the fact that payments were made both in cash and through Mpesa.
9. Counsel relied on Section 74(1) of the Employment Act which puts an obligation on an employer to maintain employment records. That he had to adduce the work records in court to contradict an employee’s claim. Counsel relied on Lady Justice Mbaru’s findings in the case of John Maina Kariuki& Anor-versus- Babs Security Services Limited [2019] eKLR on the requirements of the work records being produced by employer failure to which the court will believe the employee.
10. Counsel submitted that the Respondents never adduced any records touching on the days the Appellant reported to work. No records on the duration of work to support the averments that the Appellant worked half a day. No payment records to confirm any payment of wage between Kshs. 250- 300 per session. No explanation given to the varying Mpesa payments above the range of the alleged salary.
11. Counsel submitted that the Respondents failed in their duty to avail work records that will have disputed the claim. The burden of proof that the terms were different from what the Appellant stated lies squarely in the hands of the employer. Counsel urged the court to find that the Appellant was not a casual employee.
12. On the issue of whether the dismissal of the Appellant by the Respondents was unfair, wrongful and unlawful counsel submitted that on 6th June 2022, the Appellant received a message while on her way home informing her not to report to duty the next day. “USIKUJE KESHO”. The Appellant was never called back to work. The Respondents never made any efforts towards getting in touch with the Appellant.
13. Counsel submitted that the Appellant was never given reasons for her termination. Counsel urged the court to consider the provisions Section 47(5) of the Employment Act on the respective burden of proof, Section 43 on the proof of reason for termination and Section 45 on unfair termination. Counsel also relied on the case of James Ondima Kabesa -vs- Trojan International Limited [2017] eKLR on the requirement of both substantive and procedural fairness.
14. Counsel urged this Honourable Court to find that the Appellant was unlawfully and irregularly terminated and that the Respondents failed to follow the procedures or rules of natural justice while terminating the appellant’s service.
15. On the issue of Whether the Claimant was entitled to prayers sought counsel relied on section 107(1) of the Evidence Act on the principle of whoever who alleges must proof. That the burden of proof required from the Appellant was on balance of probabilities. Counsel invited the court to consider the case of Nicholus Kipkemoi Korir-vs-Hatari Security Guards Limited [2016] eKLR on the standard of proof.
16. Counsel submitted that the demand letter served by the Kenya Human Rights Commission to the Respondents sought for payment of a sum of Kshs. 96,098/=. This amount was for salary arrears of Kshs. 1,400/=, service pay of Kshs. 8,458/=, unlawful termination of Kshs. 84,000/= and overtime of Kshs. 2,240/=. The Respondents always ignored the demand.
17. On the prayer for unpaid Salary counsel submitted that the Appellant was never paid her salary for the 6 days worked in June,2022. This claim was never disputed by the Respondents. The Respondents failed to produce any salary payment records to revert the Claim of unpaid salary. That the Appellant was entitled to her unpaid salary and the same should be awarded.
18. On the claim of Salary Underpayments counsel submitted that the Appellant was orally employed as a house servant. She was paid a monthly salary of Kshs.7,000/=. She was paid through cash and Mpesa. The Regulation of wages (General)(Amendment)Order 2018 provides a minimum monthly salary for a house servant at Ksh. 13,572.90 exclusive of housing allowance.
19. Counsel submitted that the law was promulgated to safe guard employees from exploitation; the law of contract or estoppel was not applicable in preventing the Appellant in seeking her underpaid salaries.
20. On the prayer for one month’s pay in lieu of notice counsel submitted that the Appellant was never issued with a notice or paid one-month salary in lieu of notice. She was never handed a termination letter. Counsel relied on section 35 (1) (c) of the Act on the said notice pay.
21. On the prayer for compensation equivalent to 12 months’ salary for non- procedural termination counsel submitted that the Appellant was informed not to report to work. Her termination never followed any procedural fairness. She was never issued with a termination notice. That all forms of termination must meet both substantive and procedural fairness. Counsel relied on the case Daniel Mburu Muriu Vs. Hygrotech East Africa Ltd [2021] eKLR, on employer adhering to the Employment Act while terminating an employee. That the Appellant’s termination was procedurally irregular and unfair. That the court should award her compensation for irregular termination.
22. On the prayer for severance pay the Appellant was unlawfully and un-procedurally terminated by the Respondents. She had worked for 2 years and 5 months. Counsel relied on section 35 of the Act on entitlement of severance pay. That the law requires an employee declared redundant to be paid by the employer severance pay at the rate of not less than fifteen days’ pay for each completed year of service.
23. On the prayer for unpaid amount for leave not granted counsel submitted that the Appellant was never granted leave despite asking. She was never compensated for leave not granted. The Respondent never adduced leave records. That an employee is entitled to twenty-one leave days after working for twelve consecutive months or a pro rata leave. Counsel relied on section 10(3)(a) of the Employment Act, on the particulars to be included in the employment contract. Counsel also relied on Section 28(1)(a) of the Act on leave entitlement. That the Appellant was never compensated for leave. No records for leave payments were adduced by the Respondents. That the Appellant was entitled to payment for leave as prayed.
24. On the prayer for Housing allowance counsel submitted that the Appellant was never issued with a housing allowance. She rented her own house where she stayed with her children. She was never issued with an itemized pay slip that could have indicated the various deconsolidated benefits. The Labour Institutions Act No. 12 of 2007 provided that an employee was entitled to housing or housing allowance at the rate of 15%. She was entitled to a monthly housing allowance of Kshs. 2,035.94/=. That the Respondent failed to adduce employment records to support the fact that the payment was deconsolidated or consolidated as required under section 74 (1)(i) of the Employment Act. The Appellant was entitled to housing allowance.
RESPONDENTS’ SUBMISSIONS
25. The Respondents’ advocates Dola, Magani & Co. Advocates filed written submissions dated 3rd July, 2025 and on the issue of whether there existed an employer-employee relationship counsel submitted that the Appellant bore the burden of proving that she was an employee of the Respondents as per definition of employee in Employment Act. That she needed to establish that there was a contract of service written or oral, she was under the control and supervision of the Respondents at all times and she was remunerated regularly for her services and in particular on monthly basis. Counsel relied on the case of Charles Juma Oleng v M/S Auto Garage Ltd & Another (20140 eKLR on various tests to be established for employer-employee relationship.
26. Counsel submitted that the Appellant failed to meet these tests as she was not on a fixed schedule, she was not engaged constantly and she failed to prove that she was paid on monthly basis or a regular basis. That the Appellant was also free to engage other people for services and she did not demonstrate that she had specific working hours that she had to adhere to. That the Respondents witness Mary Kagendo clearly stated that the Appellant was not an employee of the Respondent but was engaged on need to need services.
27. Counsel submitted that the Appellant did not fall within the legal definition of an employee since she did not have a contract of service, was not engaged on fixed terms, she did not perform a specific task as she would perform any task that was given to her on a need basis and she was not paid on monthly basis or regular basis. That there was no stipulated amount but the same varied from Kshs 250/= to Kshs 300/= depending on the agreement on a particular job done.
28. Counsel submitted that the trial court did not err by dismissing the suit and finding out that there was no employer-employee relationship. That the Appellant was not entitled to any reliefs sought as there did not exist an employment relationship between her and the Respondents.
29. On the issue of whether the Appellant was unfairly terminated counsel submitted that the Appellant relies on unfair termination under section 45 of the Employment Act. That for this section to apply the Appellant ought to establish that there was employment relationship which she failed. That the Appellant never proved that the employer actually terminated her services. Counsel relied on section 47(5) of the Employment Act on the burden of proof placed on the employee for proving that unfair termination occurred.
30. Counsel submitted that the Appellant claimed that the Respondents did not communicate after abruptly informing her not to report to work. However, as her services were only on need to need basis she could only be called when need arose. That the trial court found no need for notice of termination because the Appellant was engaged on need basis. That the text message sent to her informing her not to go to their home the following day could not be interpreted as termination of employment.
31. Counsel submitted that the trial court was justified in dismissing the Appellant’s claim that she was unfairly dismissed.
32. On the issue of whether the Appellant was entitled to compensation counsel submitted that the Appellant was being engaged on need basis and not permanently or regularly and that there was no continuous service or a salary structure but wages paid only when she performed her duties. That the trial court found that through her Mpesa statements she was only engaged on need basis based on the payments therefore she was not entitled to any compensation including leave pay and house allowance.
33. Counsel relied on section 49(1)(c) of the Employment Act on compensation for unfair termination of 12 months but only when proved. That the Appellant did not prove unfair termination and she was also not an employee of the Respondents hence not entitled to any compensation. Counsel relied on the case of Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 Others 2019 eKLR that compensation will be awarded when unfair termination has been proved and it was discretionary and not automatic.
DETERMINATION
34. The court has considered the pleadings and submissions filed by the both parties herein and proceeds to analyse them as follows. It is now settled law that the duty of the first appellate court was to re-evaluate the evidence in the subordinate court both on points of law and facts and come up with its own findings and conclusions as held in Court of Appeal for East Africa in Peters –vs- Sunday Post Limited [1958] EA 424. The appropriate standard of review established in cases of appeal can be stated in three complementary principles:
i. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;
ii. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and
iii. It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.
35. The Judgment of the trial court was that the Appellant was engaged on need basis/ casual basis and would be paid after every session hence not a term employee and not unfairly terminated. The Appellant’s suit was dismissed with costs to the Respondents. The Appellant was aggrieved by the whole judgment and fronted 26 grounds of appeal which this court will condense in to two issues: -
a) Whether the trial court erred by finding that the Appellant was engaged on need basis hence she was not unfairly terminated.
b) Whether the trial court erred by not allowing the reliefs sought by the Appellant.
Whether the trial court erred by finding that the Appellant was engaged on need basis hence she was not unfairly terminated.
36. The Appellant alleged that she was employed by the Respondents as a house servant from January 2020 up to 6th, June, 2022 when her services were unfairly terminated. That her salary was Ksh 7,000/= where she could be paid by Mpesa and cash. The Respondents on the other hand alleged that they engaged the Appellant on need basis as a house servant where should would work half day and to the maximum of three days a week. That she would be paid her dues after her sessions ranging between Kshs 250/= to 300/=.
37. The Appellant mainly relied on the Mpesa statement which showed she used to receive different amounts from the Respondents at different dates of the month with the maximum amounts being Kshs 6,100/= on 4th October, 2021 and Kshs 5,000/= on 4th August, 2021 and 3rd September, 2021. The rest of the diverse payments were ranging from Kshs 100/= to 1000/= made by the Respondents at diverse dates as observed by the trial court.
38. The Respondents averred that the Appellant would be paid Kshs 250/= to 300/= per session but the Mpesa statement and the Mpesa statement showed irregular payments by the Respondent. It was not clear if the amounts used to accumulate and paid in lumpsum hence the huge amounts of as high as six thousand. On the other hand, it was not clear why the Appellant used to receive different amounts of money from the Respondent at different times of a month. The Appellant alleged that she used to be paid via Mpesa and sometimes by cash. It was hard to prove cash payments.
39. From the foregoing the court has the obligation of discerning the nature of engagement between the parties as per the law. This court is guided by Section 2 of the Employment Act which defines contract of service as follows:-
‘means an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;
40. Further, Section 2 of the Employment Act defines an employee as:-
a person employed for wages or a salary and includes an apprentice and indentured learner;
41. In the case of Charles Juma Oleng v M/S Auto Garage Ltd & another [2014] KEELRC 1170 (KLR) the court elaborated the difference between the contract of service and contract for service as follows: -
11. In most cited authorities in this regard from various jurisdictions, several tests have been applied to distinguish between what comprise ‘employment’ as against what constitutes ‘service’ in case of contracts of service as contrasted with contracts for service. They include the following:
a. The control test whereby a servant is a person who is subject to the command of the master as to the manner in which he or she shall do the work.
b. The integration test in which the worker is subjected to the rules and procedures of the employer rather than personal command. The employee is part of the business and his or her work is primarily part of the business.
c. The test of economic or business reality which takes into account whether the worker is in business on his or her own account, as an entrepreneur, or works for another person, the employer, who takes the ultimate risk of loss or chance of profit.
d. Mutuality of obligation in which the parties make commitments to maintain the employment relationship over a period of time. That a contract of service entails service in return for wages, and, secondly, mutual promises for future performance. The arrangement creates a sense of stability between the parties. The challenge is that where there is absence of mutual promises for stable future performance, the worker thereby ceases to be classified as an employee as may be the case for casual workers.
12. These tests are however not to be seen exclusively by themselves as they only serve as a guide based on the facts of each case. They are however a good guide to the issues as in this case.
42. In this case the Appellant was engaged on need basis as seen from the irregular payments of the Mpesa statement, the Respondents witness confirmed that she could work for her and she was free to work for other people, she used to work three days in a week and mostly half day. This therefore meant that the Appellant was not even a casual employee for her to be converted to term employee intended by section 37 of the Act.
43. The Appellant had a first duty to prove that she was an employee and she was not engaged on need basis before the Respondents could be called upon to prove otherwise. 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.”
44. 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 captured in sections 109 and 112 of the Act.”
45. The Appellant would like the court to believe that she was an employee of the Respondents. A closer look at the Mpesa statement showed that she was paid by the Respondents on irregular dates. If at all the Mpesa contained Kshs 7,000 or Kshs 8,000 as her monthly salary it would be a different scenario.
46. The Demand from Kenya Human Rights Commission cannot also save her without first establishing employment relationship at first. This burden is placed on the employee by section 47(5) of the Employment Act as was held by the trial court. It is upon the employee to prove she was unfairly terminated which includes first illustrating the nature of employment relationship.
47. This Court is fully aware that it is the responsibility of an employer to document the employment relationship and records under section 74 of the Act 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.
48. 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.”
49. This Court finds that on a balance of probabilities the Appellant failed to prove that she was an employee of the Respondents but she was engaged on need basis. This court also appreciates that engagements such as this one between employers and house servants is mostly oral and mostly hard to keep any employment records.
50. 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.
51. This court therefore finds that an employment relationship has serious implications on the parties. This court is therefore in agreement with the trial court that the Appellant was engaged on need basis by the Respondents and she did not convert to term employee.
52. On the claim of unfair termination since the Appellant was engaged on need basis and the Respondents illustrated that the message they sent to her not to report the next day on 6th June, 2022 meant that they would not be around and it was not termination. This court agrees with the trial court that the Appellant was not unfairly terminated.
Whether the trial court erred by not allowing the reliefs sought by the Appellant.
53. Having found that the Appellant was engaged on need basis and that she was not unfairly terminated the entire appeal cannot hold and must fall. This court therefore agrees with the lower court findings in entirety.
54. In the upshot the Appeal fails for lack of merit. The court accordingly dismisses the same with each party bearing the costs of the Appeal.
55. It is so ordered.
Dated at Nairobi this ……… day of…………. 2026
Delivered virtually this……… day of ………….2026
Abuodha Nelson Jorum
Presiding Judge-Appeals Division
2. The Appeal was based on the grounds that:
i. The learned Magistrate erred both in law and fact in dismissing the Appellant’s case on grounds that it was incumbent on the Appellant to prove that she was employed on regular basis and not on need/ casual basis.
ii. The learned Magistrate erred both in law and fact in finding that the Appellant was employed on needed basis, when the Respondent failed to prove any records to prove this allegation.
iii. The learned Magistrate erred in law by failing to consider section 74 of the Employment Act on the responsibility of the Employer to prove Employment records.
iv. The learned Magistrate erred both in law and fact by failing to consider that it was never in dispute that the Appellant was employed by the Respondent for a duration of 2 years and 5 months. Therefore, the Appellant qualifies as an employee under section 37 of the Employment Act, on conversion of casual employment to term contract.
v. The learned Magistrate erred in fact by finding that the Appellant failed to prove that she earned a salary of Kshs. 7,000/=.
vi. The learned Magistrate erred in fact by failing to consider that the Appellant was paid her salary in instalments that amounted to Kshs. 7,000/= per month.
vii. The learned Magistrate erred both in law and fact by failing to consider the Respondents’ made no efforts to communicate with the Appellant after abruptly informing her not to report to duty, as such the Appellant’s termination was unfair and unlawful.
viii. The learned Magistrate erred both in law and fact by failing to consider the Appellant made efforts to demand her unpaid salary as was admitted by the Respondents’ who acknowledge to demand letter from the Kenya Human Rights Commission.
ix. The learned Magistrate erred in law in proceeding under the wrong principles of Employment and Labour Laws.
x. The learned Magistrate erred in law and fact by failing to consider the Appellant worked as a house servant thus her minimum monthly pay is stipulated to be Ksh. 13,572.90 exclusive of housing allowance as per the regulation of wages (General)(Amendment) Order, 2018.
xi. The learned Magistrate erred in law and fact by failing to consider the Appellant worked as a house servant thus her minimum daily pay is stipulated to be Ksh. 653.10 inclusive of housing allowance as per the regulation of wagers (General)(Amendment) Order, 2018.
xii. The learned Magistrate erred both in law and fact by failing to arrive at a conclusion that the Appellant monthly salary of Ksh. 7,000 was below the stipulated statutory minimum salary.
xiii. The learned Magistrate erred both in law and fact by failing to make an award in favour of the Appellant for the sum of Ksh. 3,918.60 ostensibly on account of unpaid salary for 6 days worked in the month of June 2022.
xiv. The learned Magistrate erred both in law and fact by failing to make an award in favour of the Appellant for the sum of Ksh. 193, 514.20 ostensibly on account of underpayments accrued for the 2 years and 5 months worked by the Appellant for the Respondent.
xv. 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 Ksh. 162,874.80 ostensibly on account of compensation equivalent to 12 months’ salary for unfair and/or wrongful dismissal or unlawful termination.
xvi. The learned Magistrate erred both in law and fact by failing to make an award in favour of the Appellant for the sum of Ksh. 13,572.90 ostensibly on account of one month pay in lieu of Notice for unfair and/or wrongful dismissal or unlawful termination.
xvii. The learned Magistrate erred both in law and fact in failing to make an award in favour of the Appellant for the sum of Ksh. 15,661.03 on account of severance pay which the Appellant was in law entitled.
xviii. The learned Magistrate erred both in law and fact in failing to make an award in favour of the Appellant for the sum of Ksh. 33,401.21 on account of leave travelling allowance by the Appellant which the Appellant was in law entitled.
xix. The learned Magistrate erred both in law and fact in failing to make an award in favour of the Appellant for the sum of Ksh. 48,862 on account of housing allowance which the Appellant was in Law entitled.
xx. The learned Magistrate erred both in law and fact by dismissing the Appellant suit and directing each party to bear their own costs.
xxi. The learned Magistrate erred both in law and fact in failing to award in certificate of Service which the Appellant was in Law entitled.
xxii. The learned Magistrate erred in law in failing to appreciate the correct evidence adduced and tendered in Court.
xxiii. The learned Magistrate erred both in law and fact by failing to apply the law or the principals of equity.
xxiv. The learned Magistrate misdirected herself in her 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.
xxv. The learned Magistrate erred in law in basing her decision on extraneous factors.
xxvi. The entire decision is contrary to law and a misapprehension of the law.
3. The Appellant prayed that this Appeal be allowed, the decision of the learned Magistrate be set aside, overturned and or reversed 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
5. The Appellant’s advocates Magonda advocates filed written submissions dated 7th May,2025 and on the issue of whether the Appellant was a casual employee counsel submitted that on 1st January 2020, the Appellant was orally employed as a house servant. The agreed monthly salary was Kshs. 7,000/=. Her salary was paid both in cash and through Mpesa. She reported to work every day of the week including weekends and public holidays. On 6th June 2022, she was terminated after having worked for 2 years and 5 months.
6. Counsel submitted that the Respondents on their part averred that the Appellant was engaged on a casual basis and only when need arose. That on maximum they engaged her thrice a week and she worked only half day at an agreed wage of between Kshs. 250-300 per session. Counsel relied on section 2 of the Employment Act on definition of a casual employee.
7. Counsel submitted that where a dispute arises as to the nature of employment, an employer had an obligation to produce employment records failure to which the employee assertion will be taken as the truth. Counsel relied on the case of Abigael Jepkosgei Yator & Another- vs- China Hanan International Co. Ltd [2018] eKLR, where the court asserted this position.
8. The Respondent never adduced any employment records in support of his case that the Appellant was a casual employee. The law does not exempt an employer from keeping records of any casual employee. The Appellant’s Mpesa payment point to the fact that there was a variation in salary. The cash payment records were never adduced in court. The Respondents also never disputed to the fact that payments were made both in cash and through Mpesa.
9. Counsel relied on Section 74(1) of the Employment Act which puts an obligation on an employer to maintain employment records. That he had to adduce the work records in court to contradict an employee’s claim. Counsel relied on Lady Justice Mbaru’s findings in the case of John Maina Kariuki& Anor-versus- Babs Security Services Limited [2019] eKLR on the requirements of the work records being produced by employer failure to which the court will believe the employee.
10. Counsel submitted that the Respondents never adduced any records touching on the days the Appellant reported to work. No records on the duration of work to support the averments that the Appellant worked half a day. No payment records to confirm any payment of wage between Kshs. 250- 300 per session. No explanation given to the varying Mpesa payments above the range of the alleged salary.
11. Counsel submitted that the Respondents failed in their duty to avail work records that will have disputed the claim. The burden of proof that the terms were different from what the Appellant stated lies squarely in the hands of the employer. Counsel urged the court to find that the Appellant was not a casual employee.
12. On the issue of whether the dismissal of the Appellant by the Respondents was unfair, wrongful and unlawful counsel submitted that on 6th June 2022, the Appellant received a message while on her way home informing her not to report to duty the next day. “USIKUJE KESHO”. The Appellant was never called back to work. The Respondents never made any efforts towards getting in touch with the Appellant.
13. Counsel submitted that the Appellant was never given reasons for her termination. Counsel urged the court to consider the provisions Section 47(5) of the Employment Act on the respective burden of proof, Section 43 on the proof of reason for termination and Section 45 on unfair termination. Counsel also relied on the case of James Ondima Kabesa -vs- Trojan International Limited [2017] eKLR on the requirement of both substantive and procedural fairness.
14. Counsel urged this Honourable Court to find that the Appellant was unlawfully and irregularly terminated and that the Respondents failed to follow the procedures or rules of natural justice while terminating the appellant’s service.
15. On the issue of Whether the Claimant was entitled to prayers sought counsel relied on section 107(1) of the Evidence Act on the principle of whoever who alleges must proof. That the burden of proof required from the Appellant was on balance of probabilities. Counsel invited the court to consider the case of Nicholus Kipkemoi Korir-vs-Hatari Security Guards Limited [2016] eKLR on the standard of proof.
16. Counsel submitted that the demand letter served by the Kenya Human Rights Commission to the Respondents sought for payment of a sum of Kshs. 96,098/=. This amount was for salary arrears of Kshs. 1,400/=, service pay of Kshs. 8,458/=, unlawful termination of Kshs. 84,000/= and overtime of Kshs. 2,240/=. The Respondents always ignored the demand.
17. On the prayer for unpaid Salary counsel submitted that the Appellant was never paid her salary for the 6 days worked in June,2022. This claim was never disputed by the Respondents. The Respondents failed to produce any salary payment records to revert the Claim of unpaid salary. That the Appellant was entitled to her unpaid salary and the same should be awarded.
18. On the claim of Salary Underpayments counsel submitted that the Appellant was orally employed as a house servant. She was paid a monthly salary of Kshs.7,000/=. She was paid through cash and Mpesa. The Regulation of wages (General)(Amendment)Order 2018 provides a minimum monthly salary for a house servant at Ksh. 13,572.90 exclusive of housing allowance.
19. Counsel submitted that the law was promulgated to safe guard employees from exploitation; the law of contract or estoppel was not applicable in preventing the Appellant in seeking her underpaid salaries.
20. On the prayer for one month’s pay in lieu of notice counsel submitted that the Appellant was never issued with a notice or paid one-month salary in lieu of notice. She was never handed a termination letter. Counsel relied on section 35 (1) (c) of the Act on the said notice pay.
21. On the prayer for compensation equivalent to 12 months’ salary for non- procedural termination counsel submitted that the Appellant was informed not to report to work. Her termination never followed any procedural fairness. She was never issued with a termination notice. That all forms of termination must meet both substantive and procedural fairness. Counsel relied on the case Daniel Mburu Muriu Vs. Hygrotech East Africa Ltd [2021] eKLR, on employer adhering to the Employment Act while terminating an employee. That the Appellant’s termination was procedurally irregular and unfair. That the court should award her compensation for irregular termination.
22. On the prayer for severance pay the Appellant was unlawfully and un-procedurally terminated by the Respondents. She had worked for 2 years and 5 months. Counsel relied on section 35 of the Act on entitlement of severance pay. That the law requires an employee declared redundant to be paid by the employer severance pay at the rate of not less than fifteen days’ pay for each completed year of service.
23. On the prayer for unpaid amount for leave not granted counsel submitted that the Appellant was never granted leave despite asking. She was never compensated for leave not granted. The Respondent never adduced leave records. That an employee is entitled to twenty-one leave days after working for twelve consecutive months or a pro rata leave. Counsel relied on section 10(3)(a) of the Employment Act, on the particulars to be included in the employment contract. Counsel also relied on Section 28(1)(a) of the Act on leave entitlement. That the Appellant was never compensated for leave. No records for leave payments were adduced by the Respondents. That the Appellant was entitled to payment for leave as prayed.
24. On the prayer for Housing allowance counsel submitted that the Appellant was never issued with a housing allowance. She rented her own house where she stayed with her children. She was never issued with an itemized pay slip that could have indicated the various deconsolidated benefits. The Labour Institutions Act No. 12 of 2007 provided that an employee was entitled to housing or housing allowance at the rate of 15%. She was entitled to a monthly housing allowance of Kshs. 2,035.94/=. That the Respondent failed to adduce employment records to support the fact that the payment was deconsolidated or consolidated as required under section 74 (1)(i) of the Employment Act. The Appellant was entitled to housing allowance.
RESPONDENTS’ SUBMISSIONS
25. The Respondents’ advocates Dola, Magani & Co. Advocates filed written submissions dated 3rd July, 2025 and on the issue of whether there existed an employer-employee relationship counsel submitted that the Appellant bore the burden of proving that she was an employee of the Respondents as per definition of employee in Employment Act. That she needed to establish that there was a contract of service written or oral, she was under the control and supervision of the Respondents at all times and she was remunerated regularly for her services and in particular on monthly basis. Counsel relied on the case of Charles Juma Oleng v M/S Auto Garage Ltd & Another (20140 eKLR on various tests to be established for employer-employee relationship.
26. Counsel submitted that the Appellant failed to meet these tests as she was not on a fixed schedule, she was not engaged constantly and she failed to prove that she was paid on monthly basis or a regular basis. That the Appellant was also free to engage other people for services and she did not demonstrate that she had specific working hours that she had to adhere to. That the Respondents witness Mary Kagendo clearly stated that the Appellant was not an employee of the Respondent but was engaged on need to need services.
27. Counsel submitted that the Appellant did not fall within the legal definition of an employee since she did not have a contract of service, was not engaged on fixed terms, she did not perform a specific task as she would perform any task that was given to her on a need basis and she was not paid on monthly basis or regular basis. That there was no stipulated amount but the same varied from Kshs 250/= to Kshs 300/= depending on the agreement on a particular job done.
28. Counsel submitted that the trial court did not err by dismissing the suit and finding out that there was no employer-employee relationship. That the Appellant was not entitled to any reliefs sought as there did not exist an employment relationship between her and the Respondents.
29. On the issue of whether the Appellant was unfairly terminated counsel submitted that the Appellant relies on unfair termination under section 45 of the Employment Act. That for this section to apply the Appellant ought to establish that there was employment relationship which she failed. That the Appellant never proved that the employer actually terminated her services. Counsel relied on section 47(5) of the Employment Act on the burden of proof placed on the employee for proving that unfair termination occurred.
30. Counsel submitted that the Appellant claimed that the Respondents did not communicate after abruptly informing her not to report to work. However, as her services were only on need to need basis she could only be called when need arose. That the trial court found no need for notice of termination because the Appellant was engaged on need basis. That the text message sent to her informing her not to go to their home the following day could not be interpreted as termination of employment.
31. Counsel submitted that the trial court was justified in dismissing the Appellant’s claim that she was unfairly dismissed.
32. On the issue of whether the Appellant was entitled to compensation counsel submitted that the Appellant was being engaged on need basis and not permanently or regularly and that there was no continuous service or a salary structure but wages paid only when she performed her duties. That the trial court found that through her Mpesa statements she was only engaged on need basis based on the payments therefore she was not entitled to any compensation including leave pay and house allowance.
33. Counsel relied on section 49(1)(c) of the Employment Act on compensation for unfair termination of 12 months but only when proved. That the Appellant did not prove unfair termination and she was also not an employee of the Respondents hence not entitled to any compensation. Counsel relied on the case of Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 Others 2019 eKLR that compensation will be awarded when unfair termination has been proved and it was discretionary and not automatic.
DETERMINATION
34. The court has considered the pleadings and submissions filed by the both parties herein and proceeds to analyse them as follows. It is now settled law that the duty of the first appellate court was to re-evaluate the evidence in the subordinate court both on points of law and facts and come up with its own findings and conclusions as held in Court of Appeal for East Africa in Peters –vs- Sunday Post Limited [1958] EA 424. The appropriate standard of review established in cases of appeal can be stated in three complementary principles:
i. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;
ii. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and
iii. It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.
35. The Judgment of the trial court was that the Appellant was engaged on need basis/ casual basis and would be paid after every session hence not a term employee and not unfairly terminated. The Appellant’s suit was dismissed with costs to the Respondents. The Appellant was aggrieved by the whole judgment and fronted 26 grounds of appeal which this court will condense in to two issues: -
a) Whether the trial court erred by finding that the Appellant was engaged on need basis hence she was not unfairly terminated.
b) Whether the trial court erred by not allowing the reliefs sought by the Appellant.
Whether the trial court erred by finding that the Appellant was engaged on need basis hence she was not unfairly terminated.
36. The Appellant alleged that she was employed by the Respondents as a house servant from January 2020 up to 6th, June, 2022 when her services were unfairly terminated. That her salary was Ksh 7,000/= where she could be paid by Mpesa and cash. The Respondents on the other hand alleged that they engaged the Appellant on need basis as a house servant where should would work half day and to the maximum of three days a week. That she would be paid her dues after her sessions ranging between Kshs 250/= to 300/=.
37. The Appellant mainly relied on the Mpesa statement which showed she used to receive different amounts from the Respondents at different dates of the month with the maximum amounts being Kshs 6,100/= on 4th October, 2021 and Kshs 5,000/= on 4th August, 2021 and 3rd September, 2021. The rest of the diverse payments were ranging from Kshs 100/= to 1000/= made by the Respondents at diverse dates as observed by the trial court.
38. The Respondents averred that the Appellant would be paid Kshs 250/= to 300/= per session but the Mpesa statement and the Mpesa statement showed irregular payments by the Respondent. It was not clear if the amounts used to accumulate and paid in lumpsum hence the huge amounts of as high as six thousand. On the other hand, it was not clear why the Appellant used to receive different amounts of money from the Respondent at different times of a month. The Appellant alleged that she used to be paid via Mpesa and sometimes by cash. It was hard to prove cash payments.
39. From the foregoing the court has the obligation of discerning the nature of engagement between the parties as per the law. This court is guided by Section 2 of the Employment Act which defines contract of service as follows:-
‘means an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;
40. Further, Section 2 of the Employment Act defines an employee as:-
a person employed for wages or a salary and includes an apprentice and indentured learner;
41. In the case of Charles Juma Oleng v M/S Auto Garage Ltd & another [2014] KEELRC 1170 (KLR) the court elaborated the difference between the contract of service and contract for service as follows: -
11. In most cited authorities in this regard from various jurisdictions, several tests have been applied to distinguish between what comprise ‘employment’ as against what constitutes ‘service’ in case of contracts of service as contrasted with contracts for service. They include the following:
a. The control test whereby a servant is a person who is subject to the command of the master as to the manner in which he or she shall do the work.
b. The integration test in which the worker is subjected to the rules and procedures of the employer rather than personal command. The employee is part of the business and his or her work is primarily part of the business.
c. The test of economic or business reality which takes into account whether the worker is in business on his or her own account, as an entrepreneur, or works for another person, the employer, who takes the ultimate risk of loss or chance of profit.
d. Mutuality of obligation in which the parties make commitments to maintain the employment relationship over a period of time. That a contract of service entails service in return for wages, and, secondly, mutual promises for future performance. The arrangement creates a sense of stability between the parties. The challenge is that where there is absence of mutual promises for stable future performance, the worker thereby ceases to be classified as an employee as may be the case for casual workers.
12. These tests are however not to be seen exclusively by themselves as they only serve as a guide based on the facts of each case. They are however a good guide to the issues as in this case.
42. In this case the Appellant was engaged on need basis as seen from the irregular payments of the Mpesa statement, the Respondents witness confirmed that she could work for her and she was free to work for other people, she used to work three days in a week and mostly half day. This therefore meant that the Appellant was not even a casual employee for her to be converted to term employee intended by section 37 of the Act.
43. The Appellant had a first duty to prove that she was an employee and she was not engaged on need basis before the Respondents could be called upon to prove otherwise. 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.”
44. 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 captured in sections 109 and 112 of the Act.”
45. The Appellant would like the court to believe that she was an employee of the Respondents. A closer look at the Mpesa statement showed that she was paid by the Respondents on irregular dates. If at all the Mpesa contained Kshs 7,000 or Kshs 8,000 as her monthly salary it would be a different scenario.
46. The Demand from Kenya Human Rights Commission cannot also save her without first establishing employment relationship at first. This burden is placed on the employee by section 47(5) of the Employment Act as was held by the trial court. It is upon the employee to prove she was unfairly terminated which includes first illustrating the nature of employment relationship.
47. This Court is fully aware that it is the responsibility of an employer to document the employment relationship and records under section 74 of the Act 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.
48. 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.”
49. This Court finds that on a balance of probabilities the Appellant failed to prove that she was an employee of the Respondents but she was engaged on need basis. This court also appreciates that engagements such as this one between employers and house servants is mostly oral and mostly hard to keep any employment records.
50. 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.
51. This court therefore finds that an employment relationship has serious implications on the parties. This court is therefore in agreement with the trial court that the Appellant was engaged on need basis by the Respondents and she did not convert to term employee.
52. On the claim of unfair termination since the Appellant was engaged on need basis and the Respondents illustrated that the message they sent to her not to report the next day on 6th June, 2022 meant that they would not be around and it was not termination. This court agrees with the trial court that the Appellant was not unfairly terminated.
Whether the trial court erred by not allowing the reliefs sought by the Appellant.
53. Having found that the Appellant was engaged on need basis and that she was not unfairly terminated the entire appeal cannot hold and must fall. This court therefore agrees with the lower court findings in entirety.
54. In the upshot the Appeal fails for lack of merit. The court accordingly dismisses the same with each party bearing the costs of the Appeal.
55. It is so ordered.
Dated at Nairobi this ……… day of…………. 2026
Delivered virtually this……… day of ………….2026
Abuodha Nelson Jorum
Presiding Judge-Appeals Division