A. INTRODUCTION
1. This is an appeal against the judgment of the Chief Magistrate’s Court at Mombasa (Hon. E. M. Mwamuye, Senior Resident Magistrate) delivered on 8th May 2025 in CMC ELRC Cause No. E134 of 2023, in which the trial court dismissed in its entirety the Appellant’s claim for unfair termination, discrimination, harassment and violence, and consequential terminal benefits, on the sole ground that the Appellant had failed to prove, on a balance of probabilities, the existence of an employer-employee relationship between herself and the Respondent. Having so found, the trial court held that it lacked jurisdiction to pronounce itself on the remaining issues raised in the Memorandum of Claim, and dismissed the suit with each party bearing its own costs.
2. Aggrieved, the Appellant filed a Memorandum of Appeal dated 29th May 2025 and lodged the Record of Appeal on 4th November 2025, advancing nine (9) grounds of appeal, which are set out in full at paragraph 11 below.
B. BACKGROUND AT THE TRIAL COURT
3. By a Memorandum of Claim dated 8th March 2023, the Appellant, Nelly Angula Alumasi, averred that she was engaged by the Respondent, Dreamline Express Bus Limited, from September 2019 as a Booking Clerk at its Mtwapa Branch, at an agreed monthly salary of Kshs. 18,000/-, though promised a review to Kshs. 26,000/- upon completion of a probationary period. She pleaded that she negotiated the terms of her engagement with one Mr. Said, said to be the Respondent’s Human Resource Manager, and one Abdul Rahman Hamid, said to be its General Manager.
4. She further pleaded that, in the course of her engagement, she was routinely assigned erratic day and night shifts without payment of overtime or off-day dues, was laden with additional, uncompensated duties as a parcel/package handler, and was denied a safe working environment; that on or about 29th May 2021 she was physically and verbally assaulted at the workplace by a co-worker, one Safari Lewa, whose brother was said to be a manager of the Respondent; that she reported the assault at the Mtwapa Police Station and to the Respondent’s management, but no action was taken and she was compelled to continue working alongside her assailant; that she was denied health and washroom breaks accorded to her Muslim colleagues, who were permitted a thirty-minute break to attend the mosque; and that on 21st June 2022 she was summarily sent home by the Respondent’s Branch Manager, Mr. Hamid, on unsubstantiated allegations of theft, without notice, without a hearing, and without payment of her June 2022 salary.
5. She claimed terminal dues totalling Kshs. 2,310,891.95/-, comprising notice pay (Kshs. 30,627.45), unpaid June 2022 salary (Kshs. 18,000/-), unpaid “Package Clerk” salary for March 2020 to June 2022 (Kshs. 857,568/-), leave pay for 2019–2022 (Kshs. 122,508/-), underpayment against a claimed statutory minimum wage (Kshs. 505,080/-), unpaid house allowance (Kshs. 108,000/-), public holiday dues (Kshs. 36,553.85), overtime (Kshs. 199,385/-), severance pay (Kshs. 65,640.25), and compensation for unfair termination (Kshs. 367,529.40), together with a declaration that the Respondent had failed to maintain a harassment policy, a finding that her summary dismissal was unfair, damages for discrimination on account of harassment and violence, a certificate of service, costs and interest.
6. The Respondent entered appearance and, by a Statement of Reply dated 28th April 2023, denied the claim in its entirety. It averred that it had no record whatsoever of the Appellant, that it only became aware of her upon institution of the suit, that recruitment and termination were centrally handled by its Head of Human Resources, and that its payroll and NSSF contribution schedule did not bear the Appellant’s name. Of particular note, at paragraph 12(c) of the Statement of Reply, the Respondent pleaded as follows:
“That the Respondent has never received the letter at page 44 and never have their Advocates on record responded to the said letter vide the one that appears at page 45. Both of those documents are completely strange to the Respondent herein.”
7. The matter proceeded to hearing on 26th November 2024, when the Appellant and a witness from the Ministry of Labour, Department of Labour (“CW-2”), testified in support of the claim, and on 25th February 2025, when the Respondent’s sole witness, Ms. Atieno Onyango, its Human Resource Officer (“RW-1”), testified in its defence.
C. THE JUDGMENT OF THE TRIAL COURT
8. In its judgment delivered on 8th May 2025, the trial court framed three issues for determination: (a) whether there existed an employer-employee relationship; (b) if so, whether the Appellant’s employment was terminated unfairly; and (c) whether the Appellant was entitled to the reliefs sought.
9. Addressing itself only to the first issue, the trial court held that the burden lay upon the Appellant to prove the existence of the relationship on a balance of probabilities. It found that the only evidence tendered was a series of M-Pesa remittances from one Abdulrahman Hamid, said to be the Respondent’s manager, that the amounts remitted fluctuated from month to month without explanation, and that no proof of control by, or payment from, the Respondent itself had been demonstrated. Applying the “control”, “integration”, “economic reality” and “mutuality of obligation” tests, and drawing an analogy with the decision in Kutu v Anaali Kenya Ltd [2023] KEELRC 2061 (KLR) (where an unauthenticated letter was held insufficient, standing alone, to establish an employment relationship), the trial court concluded, at paragraphs 45 and 46 of its judgment, that the Appellant had “failed to prove on a balance of probability that there was indeed an employment relationship” and that, having so found, the court “lacks jurisdiction to determine any issues raised in the memorandum of the claim.” The suit was accordingly dismissed in its entirety, with each party bearing its own costs.
10. It is notable, and central to this appeal, that nowhere in its 47-paragraph judgment did the trial court advert to, analyse, or make any finding upon: (a) the letter of the Respondent’s own Advocates dated 11th August 2022 (Claimant’s Exhibit 5) and the admissions arising therefrom; (b) the Booking Receipts and Parcel Dispatch Sheets produced by the Appellant as Claimant’s Exhibits 7 and 8; (c) the Respondent’s failure to call any witness from its Mtwapa Branch, including the very individuals the Appellant identified as having engaged her; or (d) the presumption established by Section 10(7) of the Employment Act, 2007, in circumstances where the Respondent, despite asserting that it paid all its staff through I&M Bank, produced no bank or payroll records whatsoever relating to the Mtwapa Branch.
D. THE GROUNDS OF APPEAL
11. By her Memorandum of Appeal dated 29th May 2025, the Appellant raised the following nine grounds:
i. That the Learned Magistrate erred in fact and law in finding that the Appellant had failed to prove the existence of an employer – employee relationship with the Respondent.
ii. That the Learned Magistrate erred in fact in failing to evaluate all the documentary evidence adduced by the Appellant of employment by the Respondent.
iii. That the Learned Magistrate erred in fact and law in failing to evaluate discrepancies in the pleadings on Record, the documentary evidence and admission by the Respondent’s witness on the issue of employment of the Appellant.
iv. That the Learned Magistrate erred in fact and law in failing to evaluate the uncontroverted evidence of the Appellant on the issue of assault at her workplace and the claim for damages for discrimination on account of harassment and violence.
v. That the Learned Magistrate misdirected herself in failing to evaluate the evidence of unfair and unprocedural termination of the Appellant.
vi. That the learned Magistrate erred in law in failing to find the Respondent had failed to establish their Sexual Harassment policy and Code of Conduct existed at all.
vii. That the Learned Magistrate erred in fact and law in failing to find the Appellant’s termination unfair and unlawful.
viii. That the Learned Magistrate erred in fact and law in failing to award the Claimant damages for her dismissal on account of discrimination and her terminal dues.
ix. That the Learned Magistrate erred in failing to award the Appellant costs at trial.
12. The Appellant prayed that the judgment of 8th May 2025 be set aside, that judgment be entered in terms of the Memorandum of Claim dated 8th March 2023, and for costs of the appeal.
E. THE APPELLANT’S CASE ON APPEAL
13. In her written submissions, the Appellant contended, principally, that the trial court’s finding on the existence of an employment relationship was against the weight of the evidence. She pointed to her own testimony (Record, p.200) that she was paid “via cash and Mpesa” and had “produced evidence of the same,” which was never challenged in cross-examination; to RW-1’s admission (Record, p.206) that the Respondent pays its employees “through I&M Bank” but that “I have not produced them [bank records] in Court”; and to RW-1’s further admission that no payroll documents specific to the Mtwapa Branch were ever produced, the Respondent relying only on “a general payroll for all the offices” that was “not in Court.”
14. The Appellant relied heavily on the letter of the Respondent’s Advocates dated 11th August 2022 (Claimant’s Exhibit 5) and on the evidence of the Ministry of Labour officer (CW-2), whose testimony that the Respondent had responded to the Ministry’s inquiry by claiming the Appellant was “suspended” pending a “show cause” process was neither controverted nor cross-examined upon. She further highlighted RW-1’s own admission on cross-examination that Claimant’s Exhibit 5 was indeed a letter “from their Advocates,” directly at odds with the Respondent’s pleaded position, at paragraph 12(c) of its Statement of Reply, that the letter was “completely strange” to it.
15. On the Booking Receipts and Parcel Dispatch Sheets (Claimant’s Exhibits 7 and 8), the Appellant submitted that these were computer-generated records, bearing parcel barcodes and QR codes, produced through the Respondent’s own ETR machine and the “SAWA” dispatch application used at its Mtwapa Branch, several of which bore the notation “Booked by: nelly … (Mtwapa)”, and that this evidence was never seriously assailed at trial beyond RW-1’s bare assertion, on cross-examination, that the documents were “forged” — an allegation for which RW-1 conceded no report had been made, no investigation concluded, and no evidence tendered.
16. The Appellant further submitted that the Respondent’s own witness admitted, on cross-examination, that her alleged assailant, Safari Lewa, did in fact appear as an employee on the Respondent’s own Exhibit 2 (its NSSF contribution schedule) and Exhibit 1 (its sample employment contracts), and that no Human Resource SOPs or sexual harassment policy were produced in court despite RW-1’s assertion that one existed. On this basis, she urged that both the assault and the absence of a workplace policy were established, and that damages ought to follow.
17. On unfair termination, the Appellant pointed to the uncontroverted account of her summary dismissal by telephone on 21st June 2022 over unsubstantiated allegations of theft, which stood squarely against the Respondent’s own Advocates’ letter of 11th August 2022, referring instead to a “suspension” and a promised “show cause” that, on the evidence, never in fact took place.
F. THE RESPONDENT’S CASE ON APPEAL
18. The Respondent, for its part, maintained that the Appellant was, and remains, a stranger to it; that no contract of service, oral or otherwise, was ever concluded between the parties; and that the burden of proving the existence of an employment relationship, which it said the Appellant did not discharge, rested squarely on the Appellant throughout, citing inter alia Joseph Otieno Ogutu & 24 Others v Allied Wharfage Ltd & Another [2016] eKLR, Agripina Nthambi Ngondu v Sandro Giouse [2018] KEELRC 298 (KLR), Samuel Wambugu Ndirangu v 2NK Sacco Society Limited [2019] eKLR, Christine Adot Lopeyio v Wycliffe Mwathi Pere [2013] eKLR, and John Kamau Mburu v Program for Appropriate Technology in Health (PATH) & Another [2015] eKLR.
19. On the M-Pesa evidence, the Respondent submitted that remittances of varying amounts from a third party could not, without more, be equated to salary paid by it, and that the Appellant had failed to demonstrate that the individuals she named as having engaged her — “Mr. Said” and Mr. Abdul Rahman Hamid — possessed any actual, implied or ostensible authority to hire on its behalf, or that their acts could be attributed to it.
20. On the letter of 11th August 2022, the Respondent submitted that “[a]ny reference therein to the Appellant as an ‘employee’ was made in the context of responding to allegations raised and cannot be construed as a formal or unequivocal admission of an employment relationship,” and that “[n]ot every statement amounts to a binding admission.” On the Booking Receipts and Parcel Dispatch Sheets, it submitted that these merely showed the Appellant “could well have been performing tasks given by Mr. Said and Mr. Abdul” without thereby becoming its employee.
21. On the assault, the Respondent submitted that this was, at best, a matter for criminal or civil proceedings against Mr. Safari Lewa personally, incapable of grounding liability against it absent proof of an employment relationship, and reiterated that it maintains a functioning Human Resource department and appropriate SOPs, albeit conceding it had not produced these in evidence. On discrimination, it invoked Everret Aviation Limited v Kenya Revenue Authority [2013] eKLR for the proposition that an employment relationship is a jurisdictional precondition to any claim of workplace discrimination.
22. On quantum, the Respondent opposed each head of claim, principally on the footing that no employment relationship was proved, but also submitted, in the alternative: that severance pay under Section 40(1)(g) of the Employment Act arises only on redundancy; that house allowance, being tied to a “regular monthly salary,” could not arise absent proof of salaried employment; and that claims for underpayment, public holidays, leave pay and overtime were, in any event, in the nature of special damages requiring specific pleading and strict proof, which had not been furnished.
23. The Respondent urged that the appeal be dismissed with costs.
G. THE DUTY OF THE FIRST APPELLATE COURT
24. This being a first appeal, this Court’s mandate is to re-evaluate, re-assess and re-analyse the entirety of the evidence on record and to reach its own independent conclusions on both fact and law, while bearing in mind, and giving due allowance for, the fact that it neither saw nor heard the witnesses testify — Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123. It is that exercise which the Court now undertakes.
H. ISSUES FOR DETERMINATION
25. Having considered the record, the grounds of appeal and the rival submissions, the following issues arise for determination:
a. What is the correct legal and evidential framework for determining the existence of an employer-employee relationship where the contract is alleged to be oral, and did the trial court correctly apply it?
b. Whether, on a proper evaluation of the evidence — including the letter of 11th August 2022, the Booking Receipts and Parcel Dispatch Sheets, and the effect of the Respondent’s failure to call material witnesses — an employer-employee relationship was established.
c. Whether the Appellant was subjected to harassment and/or violence at the workplace, and whether the Respondent maintained a lawful workplace harassment policy.
d. Whether the Appellant was discriminated against at the workplace.
e. Whether the Appellant’s termination was unfair.
f. What reliefs, if any, is the Appellant entitled to.
I. ANALYSIS AND DETERMINATION
(a) The legal framework: proof of an oral contract of service and the incidence of the burden of proof
26. It is elementary, and was correctly recited by the trial court, that Section 2 of the Employment Act, 2007 defines a “contract of service” as “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.” Kenyan law has never required that a contract of employment be reduced to writing for it to be valid and enforceable; an oral contract of service is, in law, every bit as binding as a written one. This much is not, and could not seriously be, in dispute between the parties.
27. What, however, the trial court’s judgment does not sufficiently grapple with — and what, in this Court’s respectful view, lies at the very heart of this appeal — is that the Employment Act does not leave an employee who alleges an oral contract to founder on the general civil evidential rule that “he who alleges must prove,” without more. Section 10(1) of the Act obliges every employer, within the first two months of the commencement of employment, to supply the employee with the particulars of employment specified therein, in writing. Section 10(7) then provides, in terms, that “if in any legal proceedings an employer fails to produce a written contract or the written particulars prescribed in subsection (1), the burden of proving or disproving an alleged term of employment stipulated in the contract shall be on the employer.” Read together with Section 74 of the Act, which obliges an employer to keep records of every employee’s particulars of employment, wages and other prescribed matters, it is plain that Parliament deliberately allocated the risk of an absent or unproduced written record to the party best placed to create and preserve it — the employer — and not to the employee.
28. This statutory scheme is not a mere technicality. It exists precisely because an employee, particularly one engaged informally or at a branch or satellite office, as the Appellant claims to have been, will ordinarily have little or no means of generating documentary proof of her own engagement; it is the employer who controls the payroll, the personnel file, the contract register and the statutory returns. Where, therefore, an employee places before the court a coherent, consistent and detailed account of an oral engagement — as to the date it began, the person(s) who purported to engage her, the agreed remuneration, the place and hours of work, and the mode of payment — and that account is not demonstrably improbable on its face, the evidential burden shifts to the employer to displace it by producing the records the Act obliges it to keep, or by satisfactorily explaining their absence. An employer cannot simply enter a bare denial, decline to produce any branch-specific payroll, bank or personnel records, and expect the claim to fail merely because the employee’s own supporting documents fall short of a fully executed written contract.
29. Measured against this framework, the trial court’s judgment, with respect, falls short. Having correctly set out the definition of “contract of service” at paragraph 37 of its judgment, and having cited authorities on the “control,” “integration,” “economic reality” and “mutuality of obligation” tests at paragraphs 38 and 39, the court proceeded, at paragraphs 40 to 45, to assess the Appellant’s evidence in isolation, principally through the lens of the M-Pesa statements alone, without ever considering — still less applying — Section 10(7). Nowhere does the judgment ask, nor answer, the logically anterior question that the statute compels: did the Respondent produce a written contract or written particulars of employment to rebut the Appellant’s detailed account? The unchallenged evidence on record is that it did not. RW-1 testified (Record, p.206) that “[t]hey are paid through I&M Bank. I have not produced them in Court,” and that, when asked whether she had “produced payroll documents from the Mtwapa Office,” her answer was that the Respondent had only “a general payroll for all the offices” and that “[i]t is not in Court.” No bank statement, no payroll extract, no personnel file — nothing bearing specifically on the Mtwapa Branch during the material period — was ever placed before the trial court, notwithstanding that the Respondent’s own case was that all its employees, wherever stationed, are paid exclusively through a named bank. On the Respondent’s own pleaded case, such records must exist; their non-production, unexplained, engages Section 10(7) squarely in the Appellant’s favour and ought to have been treated by the trial court as a critical, if not decisive, factor. Its omission from the analysis constitutes, in this Court’s view, a material misdirection warranting interference on appeal.
(b) The letter of 11th August 2022 and the admissions it discloses
30. The Court turns next to a document which, remarkably, finds no mention whatsoever in the 47 paragraphs of the trial court’s judgment: the letter dated 11th August 2022, addressed by the firm of Nzamsa Sankale & Company Advocates to the County Labour Office, Department of Labour, Mombasa, produced in evidence as Claimant’s Exhibit 5.
31. The letter is headed “RE: YOUR LETTER DATED 1ST AUGUST, 2022” and identifies the complainant by name as the Appellant. It records that the Ministry’s letter of 1st August 2022 — itself responding to a complaint the Appellant had lodged against the Respondent, produced as Claimant’s Exhibit 4 — “has been forwarded to our chambers with instructions to address you as hereunder,” and continues, in material part:
“Your client was placed on suspension after a complaint of malpractice was forwarded to the Management. The disciplinary procedure as provided for in the Employment Act, 2007 allows employers to suspend employees as they undertake investigation and thus, after the election period is over your client will be called upon to Show cause as is required by Law. Please allow the disciplinary procedure to continue as required without any interference whatsoever.”
The letter is signed on behalf of “Nzamsa Sankale & Company” and closes with the notation “C. Client.”
32. Three features of this letter bear emphasis. First, it is written on the letterhead of, and signed by, Nzamsa Sankale & Company Advocates — the very firm of Advocates that represents the Respondent in these proceedings and represented it before the trial court. This is not, therefore, correspondence from some unconnected third party of doubtful provenance; it issues from the Respondent’s own counsel of record, expressly acting on “instructions,” and closing with a notation copying “the Client” — the Respondent. Secondly, the language used is unambiguous: it refers throughout to “your client” (the Appellant) having been “placed on suspension,” a term of art that, in ordinary labour relations parlance and under the very statute the letter itself invokes, is a disciplinary measure that can only be visited upon a person who already stands in an employment relationship with the party imposing it; one does not “suspend,” within the contemplation of the Employment Act, a stranger. Thirdly, the letter expressly invokes “the disciplinary procedure as provided for in the Employment Act, 2007” as its stated legal basis, thereby situating the Appellant’s treatment squarely within a statutory employer-employee disciplinary framework, and promises a “Show Cause” process “after the election period is over” — a contemporaneous and entirely plausible reference to the general elections held in Kenya in August 2022.
33. Against this backdrop, the position taken by the Respondent in its own pleadings is, with respect, untenable. At paragraph 12(c) of its Statement of Reply dated 28th April 2023, the Respondent averred that it “has never received the letter at page 44 and never have their Advocates on record responded to the said letter … [both] documents are completely strange to the Respondent herein.” That plea is falsified by the face of the very document it purports to disown: it is the Respondent’s own current Advocates on record who authored it. More tellingly still, that plea was abandoned by the Respondent’s own witness under oath. RW-1, on cross-examination, was asked directly whether “the letter from your lawyer states she was on suspension?” and answered, “Yes.” She confirmed, further, that Claimant’s Exhibit 5 was indeed a letter from “our Advocates.” A party is bound by the admissions of its own witness given under oath, particularly where, as here, that admission directly contradicts a pleading filed by the same party. The Respondent cannot, in the same breath, disown a document as “completely strange” in its pleadings and have its own Human Resource Officer admit under oath that it was written by its own lawyers, on its own instructions.
34. The Court is alive to the submission, advanced by the Respondent, that “not every statement amounts to a binding admission” and that a reference to “employee” made while responding to allegations “cannot be construed as a formal or unequivocal admission of an employment relationship.” That submission would carry force were the letter merely an inadvertent or ambiguous turn of phrase. It is not. The letter does not use the word “employee” in passing; its entire substance is the invocation, by the Respondent’s own Advocates, of a specific statutory disciplinary mechanism — suspension pending a show-cause process under the Employment Act, 2007 — that has no application whatsoever to a person who is not an employee. An admission need not be phrased as “I admit X” to constitute an admission in law; it suffices that a party’s own document or testimony is inconsistent with, and destructive of, the position it now seeks to maintain. Sections 17 and 30 of the Evidence Act, Cap. 80, recognise as an admission any statement made by, or on behalf of, a party, including through an agent expressly or impliedly authorised to make it — and counsel instructed to correspond with a government office on a client’s behalf, on the client’s own case, falls squarely within that description.
35. This evidence was, moreover, substantially corroborated by CW-2, the officer of the Ministry of Labour, Department of Labour, whose unchallenged testimony was that her office wrote to the Respondent on 1st August 2022 following the Appellant’s complaint, received the response of 11th August 2022 from the Respondent’s Advocates, and that the Respondent thereafter failed to honour a summons to attend a conciliation meeting. This witness was not cross-examined at all. It is trite that uncontroverted evidence, particularly that of an independent public officer with no stake in the outcome, ought ordinarily to be accepted by a trial court absent compelling reason to hold otherwise, of which none appears on this record.
36. The trial court’s judgment, having omitted any consideration of this letter, the admissions flowing from it, and the corroborating and unchallenged testimony of CW-2, cannot be said to have engaged with the totality of the material evidence before it on the central question in the case. This omission, in the Court’s assessment, was not peripheral; it went to the very heart of the matter and, standing alone, would justify interference with the trial court’s finding.
(c) The Parcel Dispatch Sheets, Booking Receipts and the allegation of forgery
37. The Appellant also relied on Claimant’s Exhibits 7 and 8 — Booking Receipts and Parcel Dispatch Sheets which she testified she personally generated in the course of her work at the Mtwapa Branch, through the Respondent’s ETR-linked ticketing system and its “SAWA” parcel-dispatch application. These are not documents of the Appellant’s own informal making; they are computer-generated records bearing the Respondent’s corporate branding, route and fare details, parcel and item barcodes, QR codes, and — in several instances exhibited in the Record — the notation “Booked by,” identifying the staff member who processed the transaction at the Mtwapa office, including entries in the Appellant’s own name.
38. The Respondent did not deny that such documents are in fact generated by its own systems; indeed, its own Exhibit 3 comprised similar booking receipts, generated in the same format, attributed to another individual, one Ashraf Mohamed, who — as RW-1 confirmed on cross-examination — likewise does not appear on the Respondent’s NSSF contribution schedule, notwithstanding being, on the Respondent’s own case, a person who generated receipts through its system at the very same branch. This is a matter of some significance: it demonstrates, on the Respondent’s own evidence, that individuals operating its Mtwapa booking and dispatch systems were not invariably reflected on its NSSF returns, undermining the weight the trial court placed on the absence of the Appellant’s name from that document as though it were dispositive.
39. As to the allegation that the Appellant’s exhibits were “forged,” this Court has scrutinised the record with some care and finds the allegation to be wholly unsubstantiated. On cross-examination, RW-1 was asked how the dispatch sheets are generated, and answered: “I know it is a software but I am not sure which one it was. The matter is still under investigation. It is not concluded.” She confirmed that no OB had been produced in relation to any such forgery, no NHIF documents, and no leave sheets. An allegation of forgery is a serious one, carrying the hallmarks of criminal conduct, and cannot be established, nor even sustained as a live evidential objection, by the bare ipse dixit of a witness who admits, in the same breath, that the “investigation” she invokes remains unconcluded, unreported, an
[...truncated]
1. This is an appeal against the judgment of the Chief Magistrate’s Court at Mombasa (Hon. E. M. Mwamuye, Senior Resident Magistrate) delivered on 8th May 2025 in CMC ELRC Cause No. E134 of 2023, in which the trial court dismissed in its entirety the Appellant’s claim for unfair termination, discrimination, harassment and violence, and consequential terminal benefits, on the sole ground that the Appellant had failed to prove, on a balance of probabilities, the existence of an employer-employee relationship between herself and the Respondent. Having so found, the trial court held that it lacked jurisdiction to pronounce itself on the remaining issues raised in the Memorandum of Claim, and dismissed the suit with each party bearing its own costs.
2. Aggrieved, the Appellant filed a Memorandum of Appeal dated 29th May 2025 and lodged the Record of Appeal on 4th November 2025, advancing nine (9) grounds of appeal, which are set out in full at paragraph 11 below.
B. BACKGROUND AT THE TRIAL COURT
3. By a Memorandum of Claim dated 8th March 2023, the Appellant, Nelly Angula Alumasi, averred that she was engaged by the Respondent, Dreamline Express Bus Limited, from September 2019 as a Booking Clerk at its Mtwapa Branch, at an agreed monthly salary of Kshs. 18,000/-, though promised a review to Kshs. 26,000/- upon completion of a probationary period. She pleaded that she negotiated the terms of her engagement with one Mr. Said, said to be the Respondent’s Human Resource Manager, and one Abdul Rahman Hamid, said to be its General Manager.
4. She further pleaded that, in the course of her engagement, she was routinely assigned erratic day and night shifts without payment of overtime or off-day dues, was laden with additional, uncompensated duties as a parcel/package handler, and was denied a safe working environment; that on or about 29th May 2021 she was physically and verbally assaulted at the workplace by a co-worker, one Safari Lewa, whose brother was said to be a manager of the Respondent; that she reported the assault at the Mtwapa Police Station and to the Respondent’s management, but no action was taken and she was compelled to continue working alongside her assailant; that she was denied health and washroom breaks accorded to her Muslim colleagues, who were permitted a thirty-minute break to attend the mosque; and that on 21st June 2022 she was summarily sent home by the Respondent’s Branch Manager, Mr. Hamid, on unsubstantiated allegations of theft, without notice, without a hearing, and without payment of her June 2022 salary.
5. She claimed terminal dues totalling Kshs. 2,310,891.95/-, comprising notice pay (Kshs. 30,627.45), unpaid June 2022 salary (Kshs. 18,000/-), unpaid “Package Clerk” salary for March 2020 to June 2022 (Kshs. 857,568/-), leave pay for 2019–2022 (Kshs. 122,508/-), underpayment against a claimed statutory minimum wage (Kshs. 505,080/-), unpaid house allowance (Kshs. 108,000/-), public holiday dues (Kshs. 36,553.85), overtime (Kshs. 199,385/-), severance pay (Kshs. 65,640.25), and compensation for unfair termination (Kshs. 367,529.40), together with a declaration that the Respondent had failed to maintain a harassment policy, a finding that her summary dismissal was unfair, damages for discrimination on account of harassment and violence, a certificate of service, costs and interest.
6. The Respondent entered appearance and, by a Statement of Reply dated 28th April 2023, denied the claim in its entirety. It averred that it had no record whatsoever of the Appellant, that it only became aware of her upon institution of the suit, that recruitment and termination were centrally handled by its Head of Human Resources, and that its payroll and NSSF contribution schedule did not bear the Appellant’s name. Of particular note, at paragraph 12(c) of the Statement of Reply, the Respondent pleaded as follows:
“That the Respondent has never received the letter at page 44 and never have their Advocates on record responded to the said letter vide the one that appears at page 45. Both of those documents are completely strange to the Respondent herein.”
7. The matter proceeded to hearing on 26th November 2024, when the Appellant and a witness from the Ministry of Labour, Department of Labour (“CW-2”), testified in support of the claim, and on 25th February 2025, when the Respondent’s sole witness, Ms. Atieno Onyango, its Human Resource Officer (“RW-1”), testified in its defence.
C. THE JUDGMENT OF THE TRIAL COURT
8. In its judgment delivered on 8th May 2025, the trial court framed three issues for determination: (a) whether there existed an employer-employee relationship; (b) if so, whether the Appellant’s employment was terminated unfairly; and (c) whether the Appellant was entitled to the reliefs sought.
9. Addressing itself only to the first issue, the trial court held that the burden lay upon the Appellant to prove the existence of the relationship on a balance of probabilities. It found that the only evidence tendered was a series of M-Pesa remittances from one Abdulrahman Hamid, said to be the Respondent’s manager, that the amounts remitted fluctuated from month to month without explanation, and that no proof of control by, or payment from, the Respondent itself had been demonstrated. Applying the “control”, “integration”, “economic reality” and “mutuality of obligation” tests, and drawing an analogy with the decision in Kutu v Anaali Kenya Ltd [2023] KEELRC 2061 (KLR) (where an unauthenticated letter was held insufficient, standing alone, to establish an employment relationship), the trial court concluded, at paragraphs 45 and 46 of its judgment, that the Appellant had “failed to prove on a balance of probability that there was indeed an employment relationship” and that, having so found, the court “lacks jurisdiction to determine any issues raised in the memorandum of the claim.” The suit was accordingly dismissed in its entirety, with each party bearing its own costs.
10. It is notable, and central to this appeal, that nowhere in its 47-paragraph judgment did the trial court advert to, analyse, or make any finding upon: (a) the letter of the Respondent’s own Advocates dated 11th August 2022 (Claimant’s Exhibit 5) and the admissions arising therefrom; (b) the Booking Receipts and Parcel Dispatch Sheets produced by the Appellant as Claimant’s Exhibits 7 and 8; (c) the Respondent’s failure to call any witness from its Mtwapa Branch, including the very individuals the Appellant identified as having engaged her; or (d) the presumption established by Section 10(7) of the Employment Act, 2007, in circumstances where the Respondent, despite asserting that it paid all its staff through I&M Bank, produced no bank or payroll records whatsoever relating to the Mtwapa Branch.
D. THE GROUNDS OF APPEAL
11. By her Memorandum of Appeal dated 29th May 2025, the Appellant raised the following nine grounds:
i. That the Learned Magistrate erred in fact and law in finding that the Appellant had failed to prove the existence of an employer – employee relationship with the Respondent.
ii. That the Learned Magistrate erred in fact in failing to evaluate all the documentary evidence adduced by the Appellant of employment by the Respondent.
iii. That the Learned Magistrate erred in fact and law in failing to evaluate discrepancies in the pleadings on Record, the documentary evidence and admission by the Respondent’s witness on the issue of employment of the Appellant.
iv. That the Learned Magistrate erred in fact and law in failing to evaluate the uncontroverted evidence of the Appellant on the issue of assault at her workplace and the claim for damages for discrimination on account of harassment and violence.
v. That the Learned Magistrate misdirected herself in failing to evaluate the evidence of unfair and unprocedural termination of the Appellant.
vi. That the learned Magistrate erred in law in failing to find the Respondent had failed to establish their Sexual Harassment policy and Code of Conduct existed at all.
vii. That the Learned Magistrate erred in fact and law in failing to find the Appellant’s termination unfair and unlawful.
viii. That the Learned Magistrate erred in fact and law in failing to award the Claimant damages for her dismissal on account of discrimination and her terminal dues.
ix. That the Learned Magistrate erred in failing to award the Appellant costs at trial.
12. The Appellant prayed that the judgment of 8th May 2025 be set aside, that judgment be entered in terms of the Memorandum of Claim dated 8th March 2023, and for costs of the appeal.
E. THE APPELLANT’S CASE ON APPEAL
13. In her written submissions, the Appellant contended, principally, that the trial court’s finding on the existence of an employment relationship was against the weight of the evidence. She pointed to her own testimony (Record, p.200) that she was paid “via cash and Mpesa” and had “produced evidence of the same,” which was never challenged in cross-examination; to RW-1’s admission (Record, p.206) that the Respondent pays its employees “through I&M Bank” but that “I have not produced them [bank records] in Court”; and to RW-1’s further admission that no payroll documents specific to the Mtwapa Branch were ever produced, the Respondent relying only on “a general payroll for all the offices” that was “not in Court.”
14. The Appellant relied heavily on the letter of the Respondent’s Advocates dated 11th August 2022 (Claimant’s Exhibit 5) and on the evidence of the Ministry of Labour officer (CW-2), whose testimony that the Respondent had responded to the Ministry’s inquiry by claiming the Appellant was “suspended” pending a “show cause” process was neither controverted nor cross-examined upon. She further highlighted RW-1’s own admission on cross-examination that Claimant’s Exhibit 5 was indeed a letter “from their Advocates,” directly at odds with the Respondent’s pleaded position, at paragraph 12(c) of its Statement of Reply, that the letter was “completely strange” to it.
15. On the Booking Receipts and Parcel Dispatch Sheets (Claimant’s Exhibits 7 and 8), the Appellant submitted that these were computer-generated records, bearing parcel barcodes and QR codes, produced through the Respondent’s own ETR machine and the “SAWA” dispatch application used at its Mtwapa Branch, several of which bore the notation “Booked by: nelly … (Mtwapa)”, and that this evidence was never seriously assailed at trial beyond RW-1’s bare assertion, on cross-examination, that the documents were “forged” — an allegation for which RW-1 conceded no report had been made, no investigation concluded, and no evidence tendered.
16. The Appellant further submitted that the Respondent’s own witness admitted, on cross-examination, that her alleged assailant, Safari Lewa, did in fact appear as an employee on the Respondent’s own Exhibit 2 (its NSSF contribution schedule) and Exhibit 1 (its sample employment contracts), and that no Human Resource SOPs or sexual harassment policy were produced in court despite RW-1’s assertion that one existed. On this basis, she urged that both the assault and the absence of a workplace policy were established, and that damages ought to follow.
17. On unfair termination, the Appellant pointed to the uncontroverted account of her summary dismissal by telephone on 21st June 2022 over unsubstantiated allegations of theft, which stood squarely against the Respondent’s own Advocates’ letter of 11th August 2022, referring instead to a “suspension” and a promised “show cause” that, on the evidence, never in fact took place.
F. THE RESPONDENT’S CASE ON APPEAL
18. The Respondent, for its part, maintained that the Appellant was, and remains, a stranger to it; that no contract of service, oral or otherwise, was ever concluded between the parties; and that the burden of proving the existence of an employment relationship, which it said the Appellant did not discharge, rested squarely on the Appellant throughout, citing inter alia Joseph Otieno Ogutu & 24 Others v Allied Wharfage Ltd & Another [2016] eKLR, Agripina Nthambi Ngondu v Sandro Giouse [2018] KEELRC 298 (KLR), Samuel Wambugu Ndirangu v 2NK Sacco Society Limited [2019] eKLR, Christine Adot Lopeyio v Wycliffe Mwathi Pere [2013] eKLR, and John Kamau Mburu v Program for Appropriate Technology in Health (PATH) & Another [2015] eKLR.
19. On the M-Pesa evidence, the Respondent submitted that remittances of varying amounts from a third party could not, without more, be equated to salary paid by it, and that the Appellant had failed to demonstrate that the individuals she named as having engaged her — “Mr. Said” and Mr. Abdul Rahman Hamid — possessed any actual, implied or ostensible authority to hire on its behalf, or that their acts could be attributed to it.
20. On the letter of 11th August 2022, the Respondent submitted that “[a]ny reference therein to the Appellant as an ‘employee’ was made in the context of responding to allegations raised and cannot be construed as a formal or unequivocal admission of an employment relationship,” and that “[n]ot every statement amounts to a binding admission.” On the Booking Receipts and Parcel Dispatch Sheets, it submitted that these merely showed the Appellant “could well have been performing tasks given by Mr. Said and Mr. Abdul” without thereby becoming its employee.
21. On the assault, the Respondent submitted that this was, at best, a matter for criminal or civil proceedings against Mr. Safari Lewa personally, incapable of grounding liability against it absent proof of an employment relationship, and reiterated that it maintains a functioning Human Resource department and appropriate SOPs, albeit conceding it had not produced these in evidence. On discrimination, it invoked Everret Aviation Limited v Kenya Revenue Authority [2013] eKLR for the proposition that an employment relationship is a jurisdictional precondition to any claim of workplace discrimination.
22. On quantum, the Respondent opposed each head of claim, principally on the footing that no employment relationship was proved, but also submitted, in the alternative: that severance pay under Section 40(1)(g) of the Employment Act arises only on redundancy; that house allowance, being tied to a “regular monthly salary,” could not arise absent proof of salaried employment; and that claims for underpayment, public holidays, leave pay and overtime were, in any event, in the nature of special damages requiring specific pleading and strict proof, which had not been furnished.
23. The Respondent urged that the appeal be dismissed with costs.
G. THE DUTY OF THE FIRST APPELLATE COURT
24. This being a first appeal, this Court’s mandate is to re-evaluate, re-assess and re-analyse the entirety of the evidence on record and to reach its own independent conclusions on both fact and law, while bearing in mind, and giving due allowance for, the fact that it neither saw nor heard the witnesses testify — Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123. It is that exercise which the Court now undertakes.
H. ISSUES FOR DETERMINATION
25. Having considered the record, the grounds of appeal and the rival submissions, the following issues arise for determination:
a. What is the correct legal and evidential framework for determining the existence of an employer-employee relationship where the contract is alleged to be oral, and did the trial court correctly apply it?
b. Whether, on a proper evaluation of the evidence — including the letter of 11th August 2022, the Booking Receipts and Parcel Dispatch Sheets, and the effect of the Respondent’s failure to call material witnesses — an employer-employee relationship was established.
c. Whether the Appellant was subjected to harassment and/or violence at the workplace, and whether the Respondent maintained a lawful workplace harassment policy.
d. Whether the Appellant was discriminated against at the workplace.
e. Whether the Appellant’s termination was unfair.
f. What reliefs, if any, is the Appellant entitled to.
I. ANALYSIS AND DETERMINATION
(a) The legal framework: proof of an oral contract of service and the incidence of the burden of proof
26. It is elementary, and was correctly recited by the trial court, that Section 2 of the Employment Act, 2007 defines a “contract of service” as “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.” Kenyan law has never required that a contract of employment be reduced to writing for it to be valid and enforceable; an oral contract of service is, in law, every bit as binding as a written one. This much is not, and could not seriously be, in dispute between the parties.
27. What, however, the trial court’s judgment does not sufficiently grapple with — and what, in this Court’s respectful view, lies at the very heart of this appeal — is that the Employment Act does not leave an employee who alleges an oral contract to founder on the general civil evidential rule that “he who alleges must prove,” without more. Section 10(1) of the Act obliges every employer, within the first two months of the commencement of employment, to supply the employee with the particulars of employment specified therein, in writing. Section 10(7) then provides, in terms, that “if in any legal proceedings an employer fails to produce a written contract or the written particulars prescribed in subsection (1), the burden of proving or disproving an alleged term of employment stipulated in the contract shall be on the employer.” Read together with Section 74 of the Act, which obliges an employer to keep records of every employee’s particulars of employment, wages and other prescribed matters, it is plain that Parliament deliberately allocated the risk of an absent or unproduced written record to the party best placed to create and preserve it — the employer — and not to the employee.
28. This statutory scheme is not a mere technicality. It exists precisely because an employee, particularly one engaged informally or at a branch or satellite office, as the Appellant claims to have been, will ordinarily have little or no means of generating documentary proof of her own engagement; it is the employer who controls the payroll, the personnel file, the contract register and the statutory returns. Where, therefore, an employee places before the court a coherent, consistent and detailed account of an oral engagement — as to the date it began, the person(s) who purported to engage her, the agreed remuneration, the place and hours of work, and the mode of payment — and that account is not demonstrably improbable on its face, the evidential burden shifts to the employer to displace it by producing the records the Act obliges it to keep, or by satisfactorily explaining their absence. An employer cannot simply enter a bare denial, decline to produce any branch-specific payroll, bank or personnel records, and expect the claim to fail merely because the employee’s own supporting documents fall short of a fully executed written contract.
29. Measured against this framework, the trial court’s judgment, with respect, falls short. Having correctly set out the definition of “contract of service” at paragraph 37 of its judgment, and having cited authorities on the “control,” “integration,” “economic reality” and “mutuality of obligation” tests at paragraphs 38 and 39, the court proceeded, at paragraphs 40 to 45, to assess the Appellant’s evidence in isolation, principally through the lens of the M-Pesa statements alone, without ever considering — still less applying — Section 10(7). Nowhere does the judgment ask, nor answer, the logically anterior question that the statute compels: did the Respondent produce a written contract or written particulars of employment to rebut the Appellant’s detailed account? The unchallenged evidence on record is that it did not. RW-1 testified (Record, p.206) that “[t]hey are paid through I&M Bank. I have not produced them in Court,” and that, when asked whether she had “produced payroll documents from the Mtwapa Office,” her answer was that the Respondent had only “a general payroll for all the offices” and that “[i]t is not in Court.” No bank statement, no payroll extract, no personnel file — nothing bearing specifically on the Mtwapa Branch during the material period — was ever placed before the trial court, notwithstanding that the Respondent’s own case was that all its employees, wherever stationed, are paid exclusively through a named bank. On the Respondent’s own pleaded case, such records must exist; their non-production, unexplained, engages Section 10(7) squarely in the Appellant’s favour and ought to have been treated by the trial court as a critical, if not decisive, factor. Its omission from the analysis constitutes, in this Court’s view, a material misdirection warranting interference on appeal.
(b) The letter of 11th August 2022 and the admissions it discloses
30. The Court turns next to a document which, remarkably, finds no mention whatsoever in the 47 paragraphs of the trial court’s judgment: the letter dated 11th August 2022, addressed by the firm of Nzamsa Sankale & Company Advocates to the County Labour Office, Department of Labour, Mombasa, produced in evidence as Claimant’s Exhibit 5.
31. The letter is headed “RE: YOUR LETTER DATED 1ST AUGUST, 2022” and identifies the complainant by name as the Appellant. It records that the Ministry’s letter of 1st August 2022 — itself responding to a complaint the Appellant had lodged against the Respondent, produced as Claimant’s Exhibit 4 — “has been forwarded to our chambers with instructions to address you as hereunder,” and continues, in material part:
“Your client was placed on suspension after a complaint of malpractice was forwarded to the Management. The disciplinary procedure as provided for in the Employment Act, 2007 allows employers to suspend employees as they undertake investigation and thus, after the election period is over your client will be called upon to Show cause as is required by Law. Please allow the disciplinary procedure to continue as required without any interference whatsoever.”
The letter is signed on behalf of “Nzamsa Sankale & Company” and closes with the notation “C. Client.”
32. Three features of this letter bear emphasis. First, it is written on the letterhead of, and signed by, Nzamsa Sankale & Company Advocates — the very firm of Advocates that represents the Respondent in these proceedings and represented it before the trial court. This is not, therefore, correspondence from some unconnected third party of doubtful provenance; it issues from the Respondent’s own counsel of record, expressly acting on “instructions,” and closing with a notation copying “the Client” — the Respondent. Secondly, the language used is unambiguous: it refers throughout to “your client” (the Appellant) having been “placed on suspension,” a term of art that, in ordinary labour relations parlance and under the very statute the letter itself invokes, is a disciplinary measure that can only be visited upon a person who already stands in an employment relationship with the party imposing it; one does not “suspend,” within the contemplation of the Employment Act, a stranger. Thirdly, the letter expressly invokes “the disciplinary procedure as provided for in the Employment Act, 2007” as its stated legal basis, thereby situating the Appellant’s treatment squarely within a statutory employer-employee disciplinary framework, and promises a “Show Cause” process “after the election period is over” — a contemporaneous and entirely plausible reference to the general elections held in Kenya in August 2022.
33. Against this backdrop, the position taken by the Respondent in its own pleadings is, with respect, untenable. At paragraph 12(c) of its Statement of Reply dated 28th April 2023, the Respondent averred that it “has never received the letter at page 44 and never have their Advocates on record responded to the said letter … [both] documents are completely strange to the Respondent herein.” That plea is falsified by the face of the very document it purports to disown: it is the Respondent’s own current Advocates on record who authored it. More tellingly still, that plea was abandoned by the Respondent’s own witness under oath. RW-1, on cross-examination, was asked directly whether “the letter from your lawyer states she was on suspension?” and answered, “Yes.” She confirmed, further, that Claimant’s Exhibit 5 was indeed a letter from “our Advocates.” A party is bound by the admissions of its own witness given under oath, particularly where, as here, that admission directly contradicts a pleading filed by the same party. The Respondent cannot, in the same breath, disown a document as “completely strange” in its pleadings and have its own Human Resource Officer admit under oath that it was written by its own lawyers, on its own instructions.
34. The Court is alive to the submission, advanced by the Respondent, that “not every statement amounts to a binding admission” and that a reference to “employee” made while responding to allegations “cannot be construed as a formal or unequivocal admission of an employment relationship.” That submission would carry force were the letter merely an inadvertent or ambiguous turn of phrase. It is not. The letter does not use the word “employee” in passing; its entire substance is the invocation, by the Respondent’s own Advocates, of a specific statutory disciplinary mechanism — suspension pending a show-cause process under the Employment Act, 2007 — that has no application whatsoever to a person who is not an employee. An admission need not be phrased as “I admit X” to constitute an admission in law; it suffices that a party’s own document or testimony is inconsistent with, and destructive of, the position it now seeks to maintain. Sections 17 and 30 of the Evidence Act, Cap. 80, recognise as an admission any statement made by, or on behalf of, a party, including through an agent expressly or impliedly authorised to make it — and counsel instructed to correspond with a government office on a client’s behalf, on the client’s own case, falls squarely within that description.
35. This evidence was, moreover, substantially corroborated by CW-2, the officer of the Ministry of Labour, Department of Labour, whose unchallenged testimony was that her office wrote to the Respondent on 1st August 2022 following the Appellant’s complaint, received the response of 11th August 2022 from the Respondent’s Advocates, and that the Respondent thereafter failed to honour a summons to attend a conciliation meeting. This witness was not cross-examined at all. It is trite that uncontroverted evidence, particularly that of an independent public officer with no stake in the outcome, ought ordinarily to be accepted by a trial court absent compelling reason to hold otherwise, of which none appears on this record.
36. The trial court’s judgment, having omitted any consideration of this letter, the admissions flowing from it, and the corroborating and unchallenged testimony of CW-2, cannot be said to have engaged with the totality of the material evidence before it on the central question in the case. This omission, in the Court’s assessment, was not peripheral; it went to the very heart of the matter and, standing alone, would justify interference with the trial court’s finding.
(c) The Parcel Dispatch Sheets, Booking Receipts and the allegation of forgery
37. The Appellant also relied on Claimant’s Exhibits 7 and 8 — Booking Receipts and Parcel Dispatch Sheets which she testified she personally generated in the course of her work at the Mtwapa Branch, through the Respondent’s ETR-linked ticketing system and its “SAWA” parcel-dispatch application. These are not documents of the Appellant’s own informal making; they are computer-generated records bearing the Respondent’s corporate branding, route and fare details, parcel and item barcodes, QR codes, and — in several instances exhibited in the Record — the notation “Booked by,” identifying the staff member who processed the transaction at the Mtwapa office, including entries in the Appellant’s own name.
38. The Respondent did not deny that such documents are in fact generated by its own systems; indeed, its own Exhibit 3 comprised similar booking receipts, generated in the same format, attributed to another individual, one Ashraf Mohamed, who — as RW-1 confirmed on cross-examination — likewise does not appear on the Respondent’s NSSF contribution schedule, notwithstanding being, on the Respondent’s own case, a person who generated receipts through its system at the very same branch. This is a matter of some significance: it demonstrates, on the Respondent’s own evidence, that individuals operating its Mtwapa booking and dispatch systems were not invariably reflected on its NSSF returns, undermining the weight the trial court placed on the absence of the Appellant’s name from that document as though it were dispositive.
39. As to the allegation that the Appellant’s exhibits were “forged,” this Court has scrutinised the record with some care and finds the allegation to be wholly unsubstantiated. On cross-examination, RW-1 was asked how the dispatch sheets are generated, and answered: “I know it is a software but I am not sure which one it was. The matter is still under investigation. It is not concluded.” She confirmed that no OB had been produced in relation to any such forgery, no NHIF documents, and no leave sheets. An allegation of forgery is a serious one, carrying the hallmarks of criminal conduct, and cannot be established, nor even sustained as a live evidential objection, by the bare ipse dixit of a witness who admits, in the same breath, that the “investigation” she invokes remains unconcluded, unreported, an
[...truncated]