1. Through the Memorandum of Appeal dated 7th June, 2023 the Appellant appeals against the Judgement of Hon. B. Cheloti (PM) delivered 12th May, 2023 in the Chief Magistrate Court at Nairobi, CMEL NO. E092 of 2023) The Appeal was based on the grounds among others that: -
a) THAT the learned magistrate erred in fact by failing to appreciate that there was no employment relationship between the parties and the appellants had no employment records in relation to the respondent to submit.
b) THAT the learned magistrate erred in fact by failing to appreciate that there was never any evidence of any contract between the appellants and the respondent parties in all the period she alleged to have been in the employment of the appellants and no instructions to perform any work of any kind were ever given to her.
c) THAT the learned magistrate erred in law and in fact in shifting the burden of proof to the appellants when the issue of employment had not been proved.
2. The Appellant therefore prayed that the Appeal be allowed and that the Judgment of the Hon. Principal Magistrate delivered 12th May, 2023 and consequential orders be set aside and the appellant awarded the costs of the appeal.
3. The Appeal was disposed of by written submissions.
APPELLANT’S SUBMISSIONS
4. The Appellant’s Advocate Mr. Macharia submitted among others that the trial court arrived at a conclusion that the respondents failed to produce employment records for the respondent without first establishing whether employment relationship existed. According to counsel, the burden to produce records could have shifted to the appellant once she established that employment relationship existed between her and the appellant. In this regard counsel relied on the case of Casmir Nyankuru Nyaberi v. Mwakikar Agencies Ltd [2016]eKLR and Kenya Union of Commercial Food & Allied Workers Union v. Mwana Black Smith Ltd [2013] eKLR.
5. Counsel further submitted that the respondent alleged to have been in the appellant’s employment for 10 years yet in cross-examination she admitted that she had never met any of the appellants. Counsel considered this improbable. The claimant further admitted never receiving any Mpesa payment from the 1st appellant but stated that she once received Mpesa payment from the 2nd appellant. With regard to the Mpesa statements, counsel submitted that the payments were made on diverse dates in the month of August, September and October, 2018 but the purpose was not disclosed and that substantial number of the payments were made after working hours with no indication of the purpose for the payment. None of the payments were made by the respondents. Counsel further urged the court to note that payments by the alleged caretaker Mr. Opondo were made on 9th August, 6th September, 12th September and 8th October, 2018 and further that the said Opondo was not called as a witness. Counsel therefore submitted that the respondent did not establish employment relationship with the appellant.
RESPONDENT’S SUBMISSIONS
6. Counsel for the respondent Mr. Magonda on the other hand submitted that the issue at hand could have been clearly determined by disclosure of employment records which the appellant failed to disclose. Section 74 of the Employment Act requires an employer to keep employment records. In this regard counsel relied on the case of John Maina Karuiki & Another v. Babs Security Services Ltd [2019] eKLR.
7. According to counsel, the respondent was able to present evidence that she was introduced to the property by the 2nd Appellant and that she worked for ten years. She was paid her salary by the caretaker/agent through cash and Mpesa. She was terminated when the appellant wanted to sell the property. In such a case, counsel submitted, the trial court exercised its discretion to believe the respondent. Counsel further submitted that the appellant admitted having employed a caretaker to manage their property but denied the actions of their agent. The appellant knew there was a dispute in court but opted not to file written record of employees.
DETERMINATION.
8. This appeal revolves around the question whether there was an employer-employee relationship between the appellant and the respondent. The trial court found there was one and proceeded to enter judgment in favour of the appellant as contained in the judgment of that court.
9. The principles that guide the Court as a first appellate court have been stated in several decisions of the Court of Appeal for instance in the case of Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR the Court of Appeal stated that:-
An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.
10. The parties before the trial court filed witness statements which they adopted as their evidence in chief. The respondent in her statement dated 10th May, 2021 stated among others that she was employed by the appellant but never signed any written contract. It was her evidence that her salary was paid through estate/property caretaker agent named Michael Opondo. The said Mr. Opondo though filed a statement, was not called as a witness. The respondent further produced Mpesa statements to show that her salary was paid by the appellants through Mr. Opondo. The 1st Appellant filed a witness statement dated 23rd May,2022 in which he denied knowledge of the respondent and ever paying her any salary.
11. The trial Court in a brief judgment stated that:
“… I have perused the memorandum of claim, statement of defence, witness statements, submissions, annexed documents and authorities… I am of the opinion the claimant has argued her case beyond a balance of probability. The respondent failed to produce employment records which would have showed that the claimant had not been their employee…to this end, the court finds that the claimant’s claim has merit and that her employment was wrongfully terminated...”
12. The burden of proof in employment disputes is clearly apportioned under section 47(5) of the Employment Act. The employee has a duty to prove that unfair termination took place and the employer has a duty to justify the grounds for the termination. Prior to proving that an unfair termination of service occurred, the employee is duty bound to prove the existence of employer-employee relationship with the person or entity the claim is being made against. The respondent in this matter alleged that the appellant was her employer for about ten years. She claimed the appellant used to pay her salary through one, Mr. Michael Opondo who she stated was the caretaker/agent employed by the appellants. The claimant further produced Mpesa statements to show that her salary was paid by the said Mr. Opondo on behalf of the appellants.
13. The Court has carefully considered the respondent’s testimony as contained in her statement in the record of appeal as well as the attached Mpesa statements and does not see any connection between the appellant that could constitute an employer-employee relationship. The appellants do not appear in the said Mpesa statements and further the said Mr. Opondo though filed a witness statement, was not called to give evidence verify the respondent’s allegations. In the circumstances, there was no basis upon which the trial court found that the respondent had proved her claim against the appellant. In the absence of failure to prove the existence of an employer-employee relationship there was no obligation on the appellant to produce any employment records since none existed on account of the respondent.
14. From the foregoing the appeal is found merited and is hereby allowed and the judgment of the trial court with all consequential orders is hereby set aside.
15. The decision of the trial court finding that there existed an employer-employee relationship between the appellant and respondent hence the latter unfairly terminated is hereby substituted with an order dismissing the respondent’s claim before the trial court with costs.
16. It is so ordered.
Dated at Nairobi this ……… day of…………. 2025
Delivered virtually this……… day of ………….2025
Abuodha Nelson Jorum
Presiding Judge-Appeals Division