Background
1. Contending that at all material times, he was an employee of the Appellant, who dismissed him unfairly, the Respondent sued the Petitioner in the above-stated lower court suit, seeking the following reliefs;
a) A declaration that the termination of his Employment was unfair and unlawful.
b) An order directing the Appellant to pay him: -
• Notice in lieu of termination ……...Kshs.30,000/=
• 12 months' compensation for unlawful termination…………………………...Kshs.360,000/=
• Leave Pay …………………………...Kshs.150,000/=
• Holiday …………………………….... Kshs.100,000/=
• Service ………………………………. Kshs.75,000/=
• Six Months' salary …………………. Kshs.180,000/=
• Southern Sudan Travel allowance (1500 USD*5) ...........................................Kshs.847,575/=
Total …………………………….. Kshs.1,742,575/=
c) An Order directing the Appellant to provide a Certificate of service.
d) The Cost of this suit.
2. The Appellant contested the Respondent’s assertions through a Reply to the Memorandum of Claim dated 6th June 2022. The Appellant’s defense was based on denying employment, allegations of serious misconduct by the Respondent, and maintaining that any termination of the driving arrangement was lawful and justified due to a fundamental breach of contract.
3. After hearing the parties' respective cases, and considering their evidence, and submissions by their Counsel, the trial Court found in favour of the Respondent. His judgment is the subject of this appeal. The Appellant assails the entirety of it.
4. This Court directed that the appeal be canvassed by way of written submissions. Both parties obliged. Their submissions are on record for consideration.
The Respondent’s case before the trial court
5. The Respondent stated that he was employed by the Appellant on 1st June 2016 as a driver and worked until 23rd September 2021, when his employment was allegedly terminated unlawfully and unfairly. He earned a monthly salary of KShs. 30,000 at the time of termination.
6. He contended that his employment was terminated without notice, without any valid or justifiable reason, and without following the procedure required under the Employment Act, 2007.
7. The Respondent further claimed that during his employment, he never went on annual leave and worked on public holidays without compensation. He also alleged that statutory deductions for NSSF and NHIF were not remitted. In addition, he stated that the employer failed to pay him his salary for the last six months of his employment.
8. His duties involved transporting goods under the World Food Programme from Mombasa to Southern Sudan (Juba). He stated that there was an agreement that he would receive a travel allowance of USD 1,500 per year due to the high-risk nature of the assignment in Juba, but this allowance was never paid during his entire period of work there.
9. He asserted that his termination transpired subsequent to his inquiry regarding the unpaid travel allowances and a salary increase, during which the employer allegedly instructed him not to report to work and to return the truck keys.
10. Consequently, he argued that the dismissal was unjust and illegal.
Appellant’s case in the lower court
11. The Appellant denied that the Respondent was ever employed by the company. As such, the Appellant contended that it could not have terminated Respondent’s employment, and all allegations of unlawful or unfair termination were categorically denied. The Appellant further refuted the Respondent’s assertions regarding unpaid salary, notice pay, leave, holiday allowances, and travel benefits, insisting that none of these was due.
12. The Appellant also stated that the Respondent had engaged in serious misconduct while driving a company vehicle. He was alleged to have carried sand beyond the lawful tonnage, prompting police intervention. For the traffic infraction, the Appellant was forced to pay a fine of KShs. 240,000 to secure the release of the vehicle.
13. In addition, the Respondent siphoned over 400 litres of diesel from company vehicles for personal gain without authorisation. It was further claimed that he negligently operated the company vehicle, causing damage to its chassis and axle and resulting in substantial repair costs.
14. The Appellant argued that these acts constituted a fundamental breach of the driving arrangement, justifying the termination of the contractual relationship. They emphasised that this conduct did not amount to unfair or unlawful termination under the law.
15. The Appellant further maintained that the provisions of the Labour Institutions Act and any claims for compensation were not applicable, given the alleged misconduct and the losses caused by the Respondent.
Judgment of the Lower Court
16. In its determination, the trial court first found that the Respondent was at all material times, an employee of the Appellant. Further, the dismissal of the Respondent from employment was unfair. Resultantly, the court awarded the Respondent one month’s salary in lieu of notice, six months’ compensation for unlawful termination, unpaid leave, service pay, and salary arrears, cumulatively, KShs. 615,000.
The Appeal
17. Dissatisfied with the Judgment of the lower Court, the Appellant filed the instant appeal, setting forth the following grounds;
I. The Learned Trial Magistrate gravely erred in law and fact in failing to take into consideration that the Respondent did not provide any contract or agreement of employment between himself and the Appellant that spelt out the terms and conditions of the alleged work. There was no employment relationship between the Appellant and the Respondent herein.
II. The Learned Trial Magistrate erred in law and fact in completely ignoring the fact that failing to plead and tender evidence as to the nature of the alleged employment disentitles the Respondent from sustaining his claim.
III. The Learned Trial Magistrate erred in law and fact in failing to take into account that the Respondent was never employed by the Appellant as a driver who was assigned motor vehicle KBR 855Y. The Respondent drove the said motor vehicle as an independent contractor and not as an employee of the Respondent.
IV. The Learned Trial Magistrate erred in law and fact in failing to take into account that there was no employment contract between the Appellant and the Respondent as contemplated in the Employment Act to give rise to unfair, unprocedural, or unlawful dismissal.
V. The Learned Trial Magistrate erred in law and fact by applying the wrong and inaccurate principles and/or considered erroneous, irrelevant, and/or extraneous factors in determining the issue of unlawful termination of employment, and he erred by failing to consider or by dismissing out of hand the issues and/or submissions raised by the Appellant.
VI. The Learned Trial Magistrate erred in law and fact in failing to take into consideration that the Respondent did not call any collaborative evidence, for example, of another labourer hired on the material day and/or in the same company to support the allegation of employment.
VII. The Learned Trial Magistrate grossly erred and misdirected himself in fact and law when he allowed the claims for a declaration that the Respondent's dismissal from employment was unfair and wrongful, a month's salary in lieu of leave, six month's compensation, unpaid leave, service pay, salary arrears and certificate of service when no firm basis for such awards had been established.
VIII. The Learned Trial Magistrate erred in law and fact in failing to appreciate that there was no contract of employment between the Appellant and Respondent that entitles him to the reliefs sought in his Pleadings.
IX. The Learned Trial Magistrate erred in law and fact in holding that the Respondent was unfairly terminated, yet there was no contract of employment between the Appellant and the Respondent.
X. The Learned Trial Magistrate erred in law and fact for failing to appreciate that the Respondent did not prove his case on a balance of probability as per the requirement of the law.
Appellant submissions
18. The Appellant’s appeal contests the judgment rendered by the lower court on 6th December 2024, which granted the Respondent a sum of Kshs. 615,000 plus costs and interest, purportedly due to the alleged unfair and unlawful termination.
19. Regarding whether the Respondent was their employee at all material times, as found by the trial Court, the Appellant argues that the Respondent failed to prove an employer-employee relationship as required under Section 2 and Part III of the Employment Act, 2007. The Appellant highlights that the Respondent did not produce a written contract nor identify the person or entity who employed him.
20. The Respondent's only testimony, claiming he worked under the Appellant, was unsupported and uncorroborated. What was described as the Respondent in pleadings before the lower court was simply a business name. The Respondent in the lower court was not a limited liability company capable of establishing an employer-employee relationship with the Claimant, [read Respondent in this appeal].
21. The Respondent’s exhibits relied upon in the lower court, including the demand letter, M-Pesa statements, travel receipts, a letter from Kahia Transporters, and a waybill document, do not establish the existence of an employment relationship. For instance, the M-Pesa statements show payments from multiple individuals, not from the Appellant, and none indicate the alleged monthly salary of Kshs. 30,000. Similarly, travel receipts, waybills, and letters from Kahia Transporters cannot, by themselves, prove an employer-employee relationship. The Appellant argues that the trial court erred by relying on these documents and correspondence to confirm the existence of employment.
22. The Respondent cited the following cases: Monica Kanini Mutua vs Al-Arafat Shopping Centre & another [2018], Janet Kwamboka & another vs Flomana Best Solution Services Ltd [2013], and Shadrack Matolo vs Kantaria Commercial Stores [2017], to support the point that proof of an employment relationship is a necessary preliminary in any claim of unfair termination. Without such proof, the claim cannot succeed.
23. Concerning the matter of unlawful and unjust termination, the appellant underscores that allegations of unfair dismissal cannot be made without establishing an employment relationship. The Appellant asserts that the respondent did not furnish evidence of salary payments, which are essential to the existence of an employment relationship. The lack of proof of wages indicates that the respondent was not employed by the appellant, thereby obviating the claim of unlawful or unfair termination.
Respondent's Submissions
24. The Respondent states that the trial court correctly found he was employed by the Appellant from June 2016 until September 2021. The Appellant’s attempt to portray the Respondent as a casual worker or independent contractor is unsupported by evidence and clearly appears to be an afterthought aimed at avoiding statutory obligations. It is evident from the facts that he worked continuously, under the direct supervision and control of the Appellant, received regular remuneration, and was assigned specific responsibilities, including driving motor vehicle KBR 855Y on domestic and international routes. These elements, taken together, satisfy the legal and factual criteria of an employment relationship under the Employment Act, 2007.
25. It is trite law that the absence of a written contract does not negate the existence of employment. Sections 9 and 10 of the Employment Act provide that a contract may be oral or written, and where no written contract is produced, the burden of proving or disproving the terms of employment rests squarely on the employer.
26. In this case, the Respondent testified to his continuous service, produced detailed M-Pesa statements showing periodic payments from the Appellant, and tendered a letter dated 29th May 2020 in which the Appellant itself recognised him as a staff member assigned to the truck. The Appellant failed to produce any employment records, payslips, statutory returns, or logbooks that could rebut this evidence. The trial Court rightly held that there existed an employment relationship existed.
27. Relying on Nanyuki Water & Sewerage Company v Benson Mwiti Ntiritu [2018] eKLR and Ruth Gathoni Ngotho-Kariuki v Presbyterian Church of East Africa & Another [2012] eKLR, both confirm that employment is a question of fact determined by control, payment, and continuity of service rather than simply documentation.
28. The Respondent additionally contends that his dismissal was both substantively and procedurally unfair. Sections 41, 43, 45, and 47 of the Employment Act mandate that an employer furnish valid reasons for termination, ensure that the employee is duly informed of the accusations against them, and afford the employee a hearing.
29. In this case, the Appellant failed to meet these statutory obligations. There was no proper notice, no hearing, and no evidence presented to justify the termination. The Appellant himself admitted under cross-examination that he had the authority to hire and dismiss drivers at will, underscoring the level of control over the Respondent and confirming the existence of an employment relationship.
30. Pius Machafu Isinddu v Lavington Security Guards Ltd [2017] eKLR and Kenfreight (E.A.) Limited v Benson K. Nguti [2016] eKLR, underscore that failure to demonstrate both substantive justification and procedural compliance renders a dismissal unfair.
31. It is contended that in the circumstances, Respondent was therefore rightly awarded the reliefs he was, by the trial Court.
Analysis and determination
32. In the case of Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA 123, the Court held as follows:-
“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ...is by way of retrial, and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect...”
I will consider the current appeal using the lens provided by this authority.
33. Having carefully considered the record, the grounds of appeal, and submissions, this appeal revolves around three key issues. Thus: -
a) Whether the Learned Magistrate erred in finding that the Respondent was an employee of the Appellant.
b) Whether the Learned Magistrate erred in finding that the Respondent’s employment was unfairly terminated; and
c) Whether the Respondent was entitled to the remedies that the trial Court awarded him.
Whether the Respondent was an employee
34. Under Section 2 of the Employment Act, 2007, an employee is defined as "a person employed for wages or salary and includes an apprentice and indentured learner.” The basis of an employment relationship is a contract of service, which may be oral or written and constitutes a consensual agreement between the parties, under which one party obligates itself to serve the other in exchange for remuneration.
35. It is imperative to note that the Appellant’s submissions imply, albeit incorrectly, that an employment contract must be in writing. From my perspective, an employment contract may be either written or oral, and neither of them is inferior in validity merely by reason of its mode of expression, provided the essential elements of a contract are shown.
36. Where an employee asserts the existence of an oral contract of employment and the employer disputes the same, the Court is not confined to the absence of written documentation. Rather, it is under a duty to interrogate the totality of the circumstances surrounding the relationship between the parties. This includes, but is not limited to, evidence of service rendered, payment og wages or salary, the degree of control exercised by the alleged employer, the conduct of the parties, and any contemporaneous record or correspondence that may shed light on the engagement.
37. In undertaking this inquiry, the Court adopts a practical and purposive approach, guided by the realities of the workplace and the need to prevent injustice. It will therefore evaluate the credibility of the parties and the consistency of their respective positions against the objective facts.
38. Consequently, the absence of a written agreement is not, in itself, determinative. Where the evidence, taken as a whole, demonstrates the existence of mutual obligations characteristic of an employment relationship, the court will not hesitate to find that a valid oral contract of employment existed. Conversely, where such evidence is lacking or unpersuasive, the claim will fail.
39. Examining the material before the trial court, including the Appellant’s pleadings and their witness’s statement, it is plainly evident that at some point, the Respondent was authorised to drive their motor vehicle Registration No. KBR 855Y/ZE 3594. The Appellant deliberately chose not to give a proper explanation of the arrangement under which this happened. However, I note they generally asserted “under contract.” In my view, the Appellant's approach did not aid their defence but rather fortified the Respondent’s position that he was their driver employee. It further brings out the Respondent as an un candid party.
40. I have not lost sight of the fact that the Respondent presented before the trial Court M‑Pesa payment records and correspondence, which indicated consistent payments from the Appellant through various individuals, including their own witness, who claimed to be their Director. This evidence, in my view, was not adequately contested or rebutted. All that the Appellant did was to issue general denials.
41. By reason of the premises, I conclude that there existed at all material times an employer-employee relationship between the Appellant and the Respondent. The learned trial Magistrate did not err in so finding.
Whether the Learned Magistrate erred in finding that the Respondent’s employment was unfairly terminated
42. In accordance with Section 43 of the Employment Act, an employer bears the responsibility to substantiate the grounds for termination. Failure to establish such reasons results in the termination being considered unfair under Section 45(2) of the Act.
43. Section 41 requires that an employer, before terminating on grounds of misconduct, notify and hear the employee and consider any representations.
44. In Ngagaya v Securitas Kenya Limited [2025] KEELRC 1714 (KLR), the court reaffirmed obligations under Sections 41, 43, 45, and 47(5) of the Employment Act in unfair termination claims and held that the employer must prove valid reasons and procedural compliance or else the termination is unfair.
45. In Section 47(5), the employee must prove that an unfair termination has occurred, and the employer must then justify the grounds for termination.
46. I have meticulously examined the materials presented before the trial Magistrate. I confidently conclude that he correctly observed that the Appellant did not provide credible evidence of show‑cause notices, disciplinary hearings, or proof that the Respondent was afforded a fair hearing prior to termination. This deficiency, and in the absence of a justified reason for dismissal, rendered the termination both substantively and procedurally unfair under the Employment Act.
Whether the Respondent was entitled to the remedies sought.
47. The Appellant challenged the reliefs granted by the learned trial Magistrate on the sole ground that, since the Respondent had not proven he was an employee of the Appellant at any material time, the remedies were not available to him. Having found, as I have hereinabove, that the Respondent was their employee, the assertion stands on quicksand. They have not challenged the grant in any adequate manner, therefore.
48. Before I conclude, it is important to note that I have acknowledged the Appellant’s claim that none of the entries on the M-Pesa statement shows an amount of Kshs. 30,000. The transaction on 23rd May 2020, conducted by the Appellant’s Director/witness, and that of 20th January 2021, among others, contradict this assertion. I am not convinced that the Respondent’s salary was not KShs. 30,000.
49. In the upshot, I find the appeal lacking in merit. It is hereby dismissed with costs.
Read Signed and Delivered this 23rd Day of March 2026.
1. Contending that at all material times, he was an employee of the Appellant, who dismissed him unfairly, the Respondent sued the Petitioner in the above-stated lower court suit, seeking the following reliefs;
a) A declaration that the termination of his Employment was unfair and unlawful.
b) An order directing the Appellant to pay him: -
• Notice in lieu of termination ……...Kshs.30,000/=
• 12 months' compensation for unlawful termination…………………………...Kshs.360,000/=
• Leave Pay …………………………...Kshs.150,000/=
• Holiday …………………………….... Kshs.100,000/=
• Service ………………………………. Kshs.75,000/=
• Six Months' salary …………………. Kshs.180,000/=
• Southern Sudan Travel allowance (1500 USD*5) ...........................................Kshs.847,575/=
Total …………………………….. Kshs.1,742,575/=
c) An Order directing the Appellant to provide a Certificate of service.
d) The Cost of this suit.
2. The Appellant contested the Respondent’s assertions through a Reply to the Memorandum of Claim dated 6th June 2022. The Appellant’s defense was based on denying employment, allegations of serious misconduct by the Respondent, and maintaining that any termination of the driving arrangement was lawful and justified due to a fundamental breach of contract.
3. After hearing the parties' respective cases, and considering their evidence, and submissions by their Counsel, the trial Court found in favour of the Respondent. His judgment is the subject of this appeal. The Appellant assails the entirety of it.
4. This Court directed that the appeal be canvassed by way of written submissions. Both parties obliged. Their submissions are on record for consideration.
The Respondent’s case before the trial court
5. The Respondent stated that he was employed by the Appellant on 1st June 2016 as a driver and worked until 23rd September 2021, when his employment was allegedly terminated unlawfully and unfairly. He earned a monthly salary of KShs. 30,000 at the time of termination.
6. He contended that his employment was terminated without notice, without any valid or justifiable reason, and without following the procedure required under the Employment Act, 2007.
7. The Respondent further claimed that during his employment, he never went on annual leave and worked on public holidays without compensation. He also alleged that statutory deductions for NSSF and NHIF were not remitted. In addition, he stated that the employer failed to pay him his salary for the last six months of his employment.
8. His duties involved transporting goods under the World Food Programme from Mombasa to Southern Sudan (Juba). He stated that there was an agreement that he would receive a travel allowance of USD 1,500 per year due to the high-risk nature of the assignment in Juba, but this allowance was never paid during his entire period of work there.
9. He asserted that his termination transpired subsequent to his inquiry regarding the unpaid travel allowances and a salary increase, during which the employer allegedly instructed him not to report to work and to return the truck keys.
10. Consequently, he argued that the dismissal was unjust and illegal.
Appellant’s case in the lower court
11. The Appellant denied that the Respondent was ever employed by the company. As such, the Appellant contended that it could not have terminated Respondent’s employment, and all allegations of unlawful or unfair termination were categorically denied. The Appellant further refuted the Respondent’s assertions regarding unpaid salary, notice pay, leave, holiday allowances, and travel benefits, insisting that none of these was due.
12. The Appellant also stated that the Respondent had engaged in serious misconduct while driving a company vehicle. He was alleged to have carried sand beyond the lawful tonnage, prompting police intervention. For the traffic infraction, the Appellant was forced to pay a fine of KShs. 240,000 to secure the release of the vehicle.
13. In addition, the Respondent siphoned over 400 litres of diesel from company vehicles for personal gain without authorisation. It was further claimed that he negligently operated the company vehicle, causing damage to its chassis and axle and resulting in substantial repair costs.
14. The Appellant argued that these acts constituted a fundamental breach of the driving arrangement, justifying the termination of the contractual relationship. They emphasised that this conduct did not amount to unfair or unlawful termination under the law.
15. The Appellant further maintained that the provisions of the Labour Institutions Act and any claims for compensation were not applicable, given the alleged misconduct and the losses caused by the Respondent.
Judgment of the Lower Court
16. In its determination, the trial court first found that the Respondent was at all material times, an employee of the Appellant. Further, the dismissal of the Respondent from employment was unfair. Resultantly, the court awarded the Respondent one month’s salary in lieu of notice, six months’ compensation for unlawful termination, unpaid leave, service pay, and salary arrears, cumulatively, KShs. 615,000.
The Appeal
17. Dissatisfied with the Judgment of the lower Court, the Appellant filed the instant appeal, setting forth the following grounds;
I. The Learned Trial Magistrate gravely erred in law and fact in failing to take into consideration that the Respondent did not provide any contract or agreement of employment between himself and the Appellant that spelt out the terms and conditions of the alleged work. There was no employment relationship between the Appellant and the Respondent herein.
II. The Learned Trial Magistrate erred in law and fact in completely ignoring the fact that failing to plead and tender evidence as to the nature of the alleged employment disentitles the Respondent from sustaining his claim.
III. The Learned Trial Magistrate erred in law and fact in failing to take into account that the Respondent was never employed by the Appellant as a driver who was assigned motor vehicle KBR 855Y. The Respondent drove the said motor vehicle as an independent contractor and not as an employee of the Respondent.
IV. The Learned Trial Magistrate erred in law and fact in failing to take into account that there was no employment contract between the Appellant and the Respondent as contemplated in the Employment Act to give rise to unfair, unprocedural, or unlawful dismissal.
V. The Learned Trial Magistrate erred in law and fact by applying the wrong and inaccurate principles and/or considered erroneous, irrelevant, and/or extraneous factors in determining the issue of unlawful termination of employment, and he erred by failing to consider or by dismissing out of hand the issues and/or submissions raised by the Appellant.
VI. The Learned Trial Magistrate erred in law and fact in failing to take into consideration that the Respondent did not call any collaborative evidence, for example, of another labourer hired on the material day and/or in the same company to support the allegation of employment.
VII. The Learned Trial Magistrate grossly erred and misdirected himself in fact and law when he allowed the claims for a declaration that the Respondent's dismissal from employment was unfair and wrongful, a month's salary in lieu of leave, six month's compensation, unpaid leave, service pay, salary arrears and certificate of service when no firm basis for such awards had been established.
VIII. The Learned Trial Magistrate erred in law and fact in failing to appreciate that there was no contract of employment between the Appellant and Respondent that entitles him to the reliefs sought in his Pleadings.
IX. The Learned Trial Magistrate erred in law and fact in holding that the Respondent was unfairly terminated, yet there was no contract of employment between the Appellant and the Respondent.
X. The Learned Trial Magistrate erred in law and fact for failing to appreciate that the Respondent did not prove his case on a balance of probability as per the requirement of the law.
Appellant submissions
18. The Appellant’s appeal contests the judgment rendered by the lower court on 6th December 2024, which granted the Respondent a sum of Kshs. 615,000 plus costs and interest, purportedly due to the alleged unfair and unlawful termination.
19. Regarding whether the Respondent was their employee at all material times, as found by the trial Court, the Appellant argues that the Respondent failed to prove an employer-employee relationship as required under Section 2 and Part III of the Employment Act, 2007. The Appellant highlights that the Respondent did not produce a written contract nor identify the person or entity who employed him.
20. The Respondent's only testimony, claiming he worked under the Appellant, was unsupported and uncorroborated. What was described as the Respondent in pleadings before the lower court was simply a business name. The Respondent in the lower court was not a limited liability company capable of establishing an employer-employee relationship with the Claimant, [read Respondent in this appeal].
21. The Respondent’s exhibits relied upon in the lower court, including the demand letter, M-Pesa statements, travel receipts, a letter from Kahia Transporters, and a waybill document, do not establish the existence of an employment relationship. For instance, the M-Pesa statements show payments from multiple individuals, not from the Appellant, and none indicate the alleged monthly salary of Kshs. 30,000. Similarly, travel receipts, waybills, and letters from Kahia Transporters cannot, by themselves, prove an employer-employee relationship. The Appellant argues that the trial court erred by relying on these documents and correspondence to confirm the existence of employment.
22. The Respondent cited the following cases: Monica Kanini Mutua vs Al-Arafat Shopping Centre & another [2018], Janet Kwamboka & another vs Flomana Best Solution Services Ltd [2013], and Shadrack Matolo vs Kantaria Commercial Stores [2017], to support the point that proof of an employment relationship is a necessary preliminary in any claim of unfair termination. Without such proof, the claim cannot succeed.
23. Concerning the matter of unlawful and unjust termination, the appellant underscores that allegations of unfair dismissal cannot be made without establishing an employment relationship. The Appellant asserts that the respondent did not furnish evidence of salary payments, which are essential to the existence of an employment relationship. The lack of proof of wages indicates that the respondent was not employed by the appellant, thereby obviating the claim of unlawful or unfair termination.
Respondent's Submissions
24. The Respondent states that the trial court correctly found he was employed by the Appellant from June 2016 until September 2021. The Appellant’s attempt to portray the Respondent as a casual worker or independent contractor is unsupported by evidence and clearly appears to be an afterthought aimed at avoiding statutory obligations. It is evident from the facts that he worked continuously, under the direct supervision and control of the Appellant, received regular remuneration, and was assigned specific responsibilities, including driving motor vehicle KBR 855Y on domestic and international routes. These elements, taken together, satisfy the legal and factual criteria of an employment relationship under the Employment Act, 2007.
25. It is trite law that the absence of a written contract does not negate the existence of employment. Sections 9 and 10 of the Employment Act provide that a contract may be oral or written, and where no written contract is produced, the burden of proving or disproving the terms of employment rests squarely on the employer.
26. In this case, the Respondent testified to his continuous service, produced detailed M-Pesa statements showing periodic payments from the Appellant, and tendered a letter dated 29th May 2020 in which the Appellant itself recognised him as a staff member assigned to the truck. The Appellant failed to produce any employment records, payslips, statutory returns, or logbooks that could rebut this evidence. The trial Court rightly held that there existed an employment relationship existed.
27. Relying on Nanyuki Water & Sewerage Company v Benson Mwiti Ntiritu [2018] eKLR and Ruth Gathoni Ngotho-Kariuki v Presbyterian Church of East Africa & Another [2012] eKLR, both confirm that employment is a question of fact determined by control, payment, and continuity of service rather than simply documentation.
28. The Respondent additionally contends that his dismissal was both substantively and procedurally unfair. Sections 41, 43, 45, and 47 of the Employment Act mandate that an employer furnish valid reasons for termination, ensure that the employee is duly informed of the accusations against them, and afford the employee a hearing.
29. In this case, the Appellant failed to meet these statutory obligations. There was no proper notice, no hearing, and no evidence presented to justify the termination. The Appellant himself admitted under cross-examination that he had the authority to hire and dismiss drivers at will, underscoring the level of control over the Respondent and confirming the existence of an employment relationship.
30. Pius Machafu Isinddu v Lavington Security Guards Ltd [2017] eKLR and Kenfreight (E.A.) Limited v Benson K. Nguti [2016] eKLR, underscore that failure to demonstrate both substantive justification and procedural compliance renders a dismissal unfair.
31. It is contended that in the circumstances, Respondent was therefore rightly awarded the reliefs he was, by the trial Court.
Analysis and determination
32. In the case of Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA 123, the Court held as follows:-
“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ...is by way of retrial, and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect...”
I will consider the current appeal using the lens provided by this authority.
33. Having carefully considered the record, the grounds of appeal, and submissions, this appeal revolves around three key issues. Thus: -
a) Whether the Learned Magistrate erred in finding that the Respondent was an employee of the Appellant.
b) Whether the Learned Magistrate erred in finding that the Respondent’s employment was unfairly terminated; and
c) Whether the Respondent was entitled to the remedies that the trial Court awarded him.
Whether the Respondent was an employee
34. Under Section 2 of the Employment Act, 2007, an employee is defined as "a person employed for wages or salary and includes an apprentice and indentured learner.” The basis of an employment relationship is a contract of service, which may be oral or written and constitutes a consensual agreement between the parties, under which one party obligates itself to serve the other in exchange for remuneration.
35. It is imperative to note that the Appellant’s submissions imply, albeit incorrectly, that an employment contract must be in writing. From my perspective, an employment contract may be either written or oral, and neither of them is inferior in validity merely by reason of its mode of expression, provided the essential elements of a contract are shown.
36. Where an employee asserts the existence of an oral contract of employment and the employer disputes the same, the Court is not confined to the absence of written documentation. Rather, it is under a duty to interrogate the totality of the circumstances surrounding the relationship between the parties. This includes, but is not limited to, evidence of service rendered, payment og wages or salary, the degree of control exercised by the alleged employer, the conduct of the parties, and any contemporaneous record or correspondence that may shed light on the engagement.
37. In undertaking this inquiry, the Court adopts a practical and purposive approach, guided by the realities of the workplace and the need to prevent injustice. It will therefore evaluate the credibility of the parties and the consistency of their respective positions against the objective facts.
38. Consequently, the absence of a written agreement is not, in itself, determinative. Where the evidence, taken as a whole, demonstrates the existence of mutual obligations characteristic of an employment relationship, the court will not hesitate to find that a valid oral contract of employment existed. Conversely, where such evidence is lacking or unpersuasive, the claim will fail.
39. Examining the material before the trial court, including the Appellant’s pleadings and their witness’s statement, it is plainly evident that at some point, the Respondent was authorised to drive their motor vehicle Registration No. KBR 855Y/ZE 3594. The Appellant deliberately chose not to give a proper explanation of the arrangement under which this happened. However, I note they generally asserted “under contract.” In my view, the Appellant's approach did not aid their defence but rather fortified the Respondent’s position that he was their driver employee. It further brings out the Respondent as an un candid party.
40. I have not lost sight of the fact that the Respondent presented before the trial Court M‑Pesa payment records and correspondence, which indicated consistent payments from the Appellant through various individuals, including their own witness, who claimed to be their Director. This evidence, in my view, was not adequately contested or rebutted. All that the Appellant did was to issue general denials.
41. By reason of the premises, I conclude that there existed at all material times an employer-employee relationship between the Appellant and the Respondent. The learned trial Magistrate did not err in so finding.
Whether the Learned Magistrate erred in finding that the Respondent’s employment was unfairly terminated
42. In accordance with Section 43 of the Employment Act, an employer bears the responsibility to substantiate the grounds for termination. Failure to establish such reasons results in the termination being considered unfair under Section 45(2) of the Act.
43. Section 41 requires that an employer, before terminating on grounds of misconduct, notify and hear the employee and consider any representations.
44. In Ngagaya v Securitas Kenya Limited [2025] KEELRC 1714 (KLR), the court reaffirmed obligations under Sections 41, 43, 45, and 47(5) of the Employment Act in unfair termination claims and held that the employer must prove valid reasons and procedural compliance or else the termination is unfair.
45. In Section 47(5), the employee must prove that an unfair termination has occurred, and the employer must then justify the grounds for termination.
46. I have meticulously examined the materials presented before the trial Magistrate. I confidently conclude that he correctly observed that the Appellant did not provide credible evidence of show‑cause notices, disciplinary hearings, or proof that the Respondent was afforded a fair hearing prior to termination. This deficiency, and in the absence of a justified reason for dismissal, rendered the termination both substantively and procedurally unfair under the Employment Act.
Whether the Respondent was entitled to the remedies sought.
47. The Appellant challenged the reliefs granted by the learned trial Magistrate on the sole ground that, since the Respondent had not proven he was an employee of the Appellant at any material time, the remedies were not available to him. Having found, as I have hereinabove, that the Respondent was their employee, the assertion stands on quicksand. They have not challenged the grant in any adequate manner, therefore.
48. Before I conclude, it is important to note that I have acknowledged the Appellant’s claim that none of the entries on the M-Pesa statement shows an amount of Kshs. 30,000. The transaction on 23rd May 2020, conducted by the Appellant’s Director/witness, and that of 20th January 2021, among others, contradict this assertion. I am not convinced that the Respondent’s salary was not KShs. 30,000.
49. In the upshot, I find the appeal lacking in merit. It is hereby dismissed with costs.
Read Signed and Delivered this 23rd Day of March 2026.