Background
1. Contending that at all material times he was an employee of the Respondent, and whose employment they unfairly terminated, the Appellant sued them, seeking compensatory reliefs, thus;
a. One-month salary in lieu of notice - KShs. 30,000.00
b. Unpaid salary for 18 days worked in December 2021 - KShs. 18,000.00
c. House allowance for 64 months at the rate of 15% of the basic salary 15/100x30,000x64 months - KShs. 288,000.00
d. Unpaid holidays worked 1000 x 5 days x 5 years - KShs. 25,000.00
e. Unremitted NHIF contributions for 64 months (500 x 64) - KShs. 32,000.00
f. Unpaid leave days 30,000 x 5 years - KShs. 150,000.00
g. Compensation for unlawful termination 30,000x12 - KShs. 360,000.00
h. Service pay 30,000/2 x 5 years - KShs. 75,000.00
TOTAL KShs. 978,000.00
2. The Respondent opposed the Appellant’s claim via the Reply to Memorandum of Claim dated 4th May, 2023. The Respondent contended that it never employed the Appellant at any time, and as such, the Appellant’s claim against them was unfounded. The reliefs he sought were therefore unavailable to him.
3. After hearing the parties on their respective cases, and considering their evidence, and submissions by their Counsel, the learned trial Magistrate returned that the Appellant’s case stood on quicksand as he didn’t establish that there existed an employer-employee relationship between the Appellant and him, at the material time or at all, and consequently dismissed the same.
4. Per this Court’s directions, this appeal was argued through written submissions.
Appellant’s case before the trial court
5. The Appellant claimed that the Respondent hired him on August 3, 2016, as a construction worker. His duties included building roads and gabions in Kwale County, with a monthly salary of KShs. 30,000.
6. He worked continuously and diligently for the Respondent until 18th December 2021, when his employment was terminated by the Respondent’s supervisor, Mr. Charles Kyalo, allegedly in total disregard of the law.
7. On 5 June 2018, he was involved in a work-related accident while travelling in the Respondent’s motor vehicle en route to his place of employment. As a consequence, he sustained injuries and was advised by a medical professional to undertake light duties until he achieves full recovery.
8. Following the incident, the Respondent’s supervisor exhibited hostility towards him. On 18th December 2021, at approximately 11:00 a.m., he was notified that his employment was terminated due to unsatisfactory performance and sluggishness.
9. Upon seeking an explanation for his termination, the Appellant was instead instructed to surrender all the Respondent’s property and leave immediately, without being given any notice of termination or an opportunity to be heard.
10. The Appellant further stated that his December 2021 salary was not paid. Throughout his employment from 2016 to 2021, he was never granted leave, worked on all public holidays, and was not given any days off.
11. He asserted that he rendered service to the Respondent with dedication and commitment, contributed to the Respondent’s objectives, and that all his endeavours to seek redress and compensation following his dismissal were disregarded by the Respondent.
12. The termination of his employment contravened the principles of procedural and substantive fairness. Consequently, it was unfair.
The Respondent’s case before the trial court
13. The Respondent called a single witness, Mr. Charles Kyalo Ngatia, to support their defence against the Appellant’s case. As a director of the Respondent company, he testified that the Respondent operates as a private limited liability company involved in gabion and road construction projects in Kwale County under contractual arrangements.
14. The witness stated, in his witness statement turned evidence in chief, that he had known the Appellant since he had occasionally engaged him temporarily for some projects that the Respondent was undertaking. However, the Respondent did not employ him permanently at any time, owing to the seasonal nature of the Company’s projects, which permitted employment only during periods of active contracts.
15. The allegation by the Appellant that he first came into the Respondent's employment in 2016 was not true, as the Respondent had not been incorporated at that time. Its incorporation took place on 18th April 2017.
16. The witness further stated that it was the Respondent’s practice to only hire casual labourers for a period of not less than 5 days and a maximum of 20 days. They were usually paid on a week-to-week basis rather than a monthly salary, as the Appellant alleged.
17. The Appellant was never involved in an accident while working for the company.
Judgment of the lower court
18. The trial Court distilled four issues for determination: whether the Appellant was an employee of the Respondent, whether the termination of the Appellant’s employment was wrongful, whether the Appellant was entitled to the reliefs sought, and who would bear the costs of the cause. The learned trial Magistrate considered the material before her and concluded that there was no single document connecting the Appellant to the Respondent as his employer. The Appellant’s case collapsed on that ground.
The Appeal
19. Dissatisfied with the Judgment of the lower Court, the Appellant filed the instant appeal, setting forth the following grounds;
a) THAT the learned Magistrate erred in law and fact in shifting the burden of proof to the Appellant, who had proved his case to the balance of probability that he was employed by the Respondent and dismissed unfairly from his employment.
b) THAT the learned Magistrate erred in law and fact in finding that the Appellant was not an employee of the Respondent despite the Respondent admitting in paragraph 4(ii) that it employed the Appellant.
c) THAT the learned erred in law in finding that the Appellant was not an employee of the Respondent despite the Respondent failing to provide evidence about the number of days worked by the Appellant to indicate that indeed the Appellant was a casual employee.
d) THAT the learned trial Magistrate erred in law and fact in failing to appreciate that the Respondent was the custodian of all documents regarding the Appellant's employment and bore the high responsibility of producing the same, other than transferring the same responsibility to the Appellant.
e) THAT the learned trial Magistrate erred in law and fact in finding that the Appellant failed to produce any document, yet the law recognises oral contracts, for which documents may not be available.
f) THAT the learned trial Magistrate proceeded on wrong principles in arriving at the finding that the Appellant was not an employee of the Respondent.
g) THAT the learned trial Magistrate disregarded the overwhelming evidence tendered by the Appellant to prove that he was entitled to terminal dues upon unlawful dismissal from work.
h) THAT the Learned Magistrate disregarded the submissions made by the Appellant's counsel on both the law and the facts.
Analysis and determination
Issues;
20. I have carefully considered the parties' pleadings, evidence and submissions before the trial Court, and the submissions by Counsel for the parties in this appeal, and hold that this appeal turns on the following issues;
I. Whether an employer–employee relationship existed between the Appellant and the Respondent.
II. If so, whether the Appellant’s employment termination was unfair and unlawful.
III. Whether the Appellant is entitled to the reliefs sought in his pleadings before the lower court.
IV. Who should bear the costs of the appeal?
21. As this matter constitutes a first appeal, this Court is obligated to re-evaluate, re-analyse, and reconsider the evidence on record and to reach its own independent conclusion, while bearing in mind that it did not have the advantage of observing or hearing the witnesses testify. This principle was reaffirmed in Selle v. Associated Motor Boat Co. Ltd [1968] EA 123.
22. The learned trial Magistrate dismissed the Appellant’s claim solely on the ground that he failed to establish that, at the material time, an employer-employee relationship existed between him and the Respondent. As such, none of the reliefs he sought could be granted to him. This Court notes that the learned trial Magistrate premised the conclusion on the fact that none of the documents the Appellant produced before her linked him to the Respondent as his employer. Critically, this Court finds that the learned trial Magistrate did not appreciate the legal position that an employment relationship can be founded on either a written or an oral contract. Furthermore, in the absence of a written contract, should a dispute arise concerning an employment term, the employer bears the burden of proving the existence of that term.
23. Section 10[7] of the employment provides;
“If in any legal proceedings an employer fails to produce a written contract or the particulars prescribed in subsection [1], the burden of proving or disapproving an alleged term of employment stipulated in the contract shall be on the employer.”
In this Court’s view, one of the terms that, where applicable, the employer may be called upon to prove or disprove is the form and duration of the contract.
24. At this juncture, it is crucial to note that the structure of the Employment Act, 2007, is intentionally designed in such a manner that the provisions of section 107 of the Evidence Act, Cap 80, Laws of Kenya, may not be applicable in all circumstances to employment disputes, as they are in ordinary civil claims. The Act has imposed certain legal burdens on the employer to discharge, which, stricto sensu, in an ordinary civil suit and applying the general principle that he who asserts must prove, would lie on the employee. Apparently, the Respondent’s submissions miss this point.
25. In situations where the fact or a matter on which an obligation lies upon a party to prove is admitted by the adversary, such a fact or matter is deemed in law proved by dint of the admission.
26. The Appellant contends in this appeal that the Respondent admitted the existence of an employment relationship between it and him, and as such, it was incorrect for the learned trial Magistrate to dismiss his claim on the ground that he didn’t tender documents to establish the relationship. This Court notes that in paragraph 4[ii] of the Reply to Memorandum of Claim, the Respondent averred;
“ After the Respondent’s incorporation in 2017, the Respondent never employed the Claimant but only engaged him on a casual basis of week to week payment whenever necessary.”
And their witness in his witness statement, their witness stated;
“ 5. THAT the Claimant herein is known to me since I have engaged him temporarily on some projects that we have been carrying out, and at no point was he a permanent employee in the company, owing to the fact that the projects we carry out are seasonal and we only hire when we have an ongoing contract.”
27. In his evidence before the trial Court, the Respondent’s witness explicitly stated that the Appellant was one of the casual employees of the defendant company.
28. Based on the foregoing, regardless of the Respondent's label, I conclude that an employment relationship existed between the Appellant and the Respondent. The learned trial Magistrate erred in law by finding that the Respondent had failed to establish the existence of such a relationship, notwithstanding the Respondent's conspicuous admissions acknowledging its existence.
29. Before I proceed to examine the subsequent issue for determination, it is pertinent to note that the Respondent tied up paragraph 4 of his pleadings by a commitment that, with the leave of the trial Court, he would submit documentary evidence to substantiate the matters contained therein. In my view, including the fact that the Appellant was consistently employed as a casual worker at various times, and indeed, those times he was employed. Ultimately, whether deliberately or inadvertently, they did not fulfil this obligation.
30. Having found that there existed an employment relationship as I have hereinabove, I now turn to consider whether the Appellant’s employment was terminated unfairly.
31. In a claim alleging unfair termination or wrongful summary dismissal, Section 47[5] outlines two sequential legal burdens for the employee and employer. The employee must first prima facie establish that an unlawful termination or wrongful dismissal occurred. Only then does the evidential burden shift to the employer, who must show that the termination or dismissal was justified. See also Galgalo Jarso Jillo v Agricultural Finance Corporation [2021] eKLR.
32. The Appellant explicitly averred in his pleadings and explained in his witness statement [turned part of his evidence in chief], and oral evidence before the trial Court, how the termination of his employment occurred. In my opinion, based on his evidence before the trial Court, he prima facie demonstrated that the Respondent terminated his employment without compliance with procedural and substantive fairness. The evidential burden subsequently shifted to the Respondent, and the subsequent question to be addressed is whether the Respondent fulfilled their legal obligation envisaged under the provision.
33. It is worth noting that, in his evidence under cross-examination, the Respondent’s witness sought to shift the Respondent’s position regarding the Appellant’s employment by asserting that the Appellant was an employee of those to whom the Respondent had subcontracted work during its projects. As this position ran counter to what was pleaded, nothing would turn on it. Section 43 of the Employment Act, 2007, places a duty on the employer, in a dispute regarding the termination of an employee’s employment, to prove the reason[s] for the termination. Undoubtedly, where the employer fails to discharge the duty, the termination shall be deemed unfair, by virtue of the provisions of section 45 of the Act.
34. In the case of Muthaiga Country Club vs Kudheiha Workers [2017] eKLR cited by the Appellant, the Court of Appeal stated;
“The grievants having denied, through their witness, the reasons given for their dismissal, discharged their obligation under Section 47[5] of the Act by laying the basis for their claim that an unfair termination of employment had occurred. This brought into play Section 43[1] and 47[5] of the Act that places the burden upon the Appellant to prove the alleged reasons for termination of the grievants’ employment, and justify the grounds for termination of employment”
35. I think that, given the position taken by the Respondent regarding the employment relationship between the Respondent and the Appellant, the Respondent’s vision got blurred. They didn’t bother to drive any evidence before the trial court to establish the reason[s] for the termination of the Appellant’s employment, and that the reasons were valid and fair. Consequently, I am unable to conclude that the Respondent had a valid and fair reason to terminate the Appellant’s employment. The deeming effect comes into place. The termination was unfair by operation of law under Section 45 of the Employment Act.
36. Section 41 of the Employment Act provides for a mandatory procedure that any employer contemplating terminating an employee’s employment or summarily dismissing an employee must conform to. A mandatory procedure that encompasses three vital ingredients;
I. The notification ingredient- The employer must notify the affected employee of its intention and the grounds for the intended action.
II. The hearing ingredient- The employee must be accorded an adequate opportunity to make a representation on the grounds. Conjoined to this right, is right to accompaniment, the employee shall be allowed to be accompanied during the hearing by a colleague, or a trade union representative [where he is a member], and
III. The consideration ingredient- before taking a final decision on the matter, the employer must consider the3 representations made by the employee and or the accompanying person.
37. Undoubtedly, the Respondent did not place evidence before the trial Court to show that these dictates of procedural fairness were adhered to. Consequently, I find that the termination of the Appellant’s employment was procedurally unfair.
38. Maybe heed needs to be taken. In the distinctive architecture of the provisions of the Employment Act 2007, and, more particularly, those concerning the standard of proof and what must be proved by whom in employment disputes, an employer cannot afford to be evasive about the existence of an employer-employee relationship and the form of employment. Embracing an evasive approach would definitely cloud their focus on discharging their legal burdens.
39. Having found as I have hereinabove, I now turn to consider whether or not the Appellant is entitled to the reliefs that he sought before the lower court. The Respondent having failed to place convincing evidence before the trial Court that the Appellant was a casual employee, I have no hesitation in concluding that the Appellant’s employment was terminable under section 35 of the Employment Act by twenty-eight days’ notice, a notice which was not issued. As a result, I return that he is entitled to notice pay under section 36 of the Employment Act, one month’s salary in lieu of notice.
40. The Appellant contended that he was not paid a salary for the 18 days he worked in December 2021. The Respondent did not place forth evidence to discount this claim. I award him the relief.
41. Section 49 of the Employment Act 2007 empowers the Court to grant compensatory relief to an employee who has successfully challenged their employer’s decision to terminate their employment unfairly. However, it is important to note that the power is exercised at the discretion of the court, depending on the circumstances of each case.
42. I have carefully considered the length of service by the Appellant to the Respondent, the fact that the termination of his employment was without any proven justifiable reason, and that it was not demonstrated that the Appellant did influence the termination in any manner, and conclude that the Appellant ought to have been granted the compensatory award. I hereby grant him four months’ gross salary for the unfair termination of his employment.
43. The Appellant sought compensation for house allowance [KShs. 288,000]. I have carefully reviewed his pleadings, witness statement, and oral testimony before the trial court and see no factual or evidentiary basis for the relief sought. It would not be available to the Appellant. The same thing applies to relief sought under the head “Unpaid leave days worked.
44. Annual leave is a statutory right of an employee under section 28 of the Employment Act. Accordingly, the provision imposes a corresponding duty on the employer to facilitate the enjoyment of that right. The Appellant asserted that throughout his employment, the Respondent did not permit him to take leave, and, as a result, he is entitled to compensation for the leave days earned but not utilised. Under section 90 of the Employment Act, the claim falls within the category of continuous injury claims. It ought to have been initiated within twelve months of the date of cessation of the wrong [the date of termination, in the context of the suit in the lower court], but it was not. For that reason, the relief would not be granted to the Appellant.
45. Equally, the claim for unremitted NHIF contributions for sixty four months, was not evidentiary supported. It was just thrown to the trial Court. Consequently, it lacked merit.
46. In the upshot, the Appellant’s appeal succeeds on the following terms;
I. The learned trial Magistrate’s judgement is hereby set aside.
II. In place thereof, a judgment allowing the Appellant’s claim in the lower court suit is hereby entered in the following terms;
a. A declaration that at all material times the Appellant was an employee of the Respondent, whose employment was terminated unfairly.
b. One month’s salary in lieu of notice, KShs. 30,000.
c. Compensation pursuant to the provisions of Section 49[1][c] of the Employment Act, four [4] months gross salary, KShs. 120,000.
d. Unpaid salary for the 18 days worked in December 2021, KShs. 18,000.
e. Costs of the suit.
f. Interest on the awarded sum at court rates from the date of this suit till full payment.
III. Costs of this Appeal.
Read Signed and Delivered this 29th Day of January 2026.
1. Contending that at all material times he was an employee of the Respondent, and whose employment they unfairly terminated, the Appellant sued them, seeking compensatory reliefs, thus;
a. One-month salary in lieu of notice - KShs. 30,000.00
b. Unpaid salary for 18 days worked in December 2021 - KShs. 18,000.00
c. House allowance for 64 months at the rate of 15% of the basic salary 15/100x30,000x64 months - KShs. 288,000.00
d. Unpaid holidays worked 1000 x 5 days x 5 years - KShs. 25,000.00
e. Unremitted NHIF contributions for 64 months (500 x 64) - KShs. 32,000.00
f. Unpaid leave days 30,000 x 5 years - KShs. 150,000.00
g. Compensation for unlawful termination 30,000x12 - KShs. 360,000.00
h. Service pay 30,000/2 x 5 years - KShs. 75,000.00
TOTAL KShs. 978,000.00
2. The Respondent opposed the Appellant’s claim via the Reply to Memorandum of Claim dated 4th May, 2023. The Respondent contended that it never employed the Appellant at any time, and as such, the Appellant’s claim against them was unfounded. The reliefs he sought were therefore unavailable to him.
3. After hearing the parties on their respective cases, and considering their evidence, and submissions by their Counsel, the learned trial Magistrate returned that the Appellant’s case stood on quicksand as he didn’t establish that there existed an employer-employee relationship between the Appellant and him, at the material time or at all, and consequently dismissed the same.
4. Per this Court’s directions, this appeal was argued through written submissions.
Appellant’s case before the trial court
5. The Appellant claimed that the Respondent hired him on August 3, 2016, as a construction worker. His duties included building roads and gabions in Kwale County, with a monthly salary of KShs. 30,000.
6. He worked continuously and diligently for the Respondent until 18th December 2021, when his employment was terminated by the Respondent’s supervisor, Mr. Charles Kyalo, allegedly in total disregard of the law.
7. On 5 June 2018, he was involved in a work-related accident while travelling in the Respondent’s motor vehicle en route to his place of employment. As a consequence, he sustained injuries and was advised by a medical professional to undertake light duties until he achieves full recovery.
8. Following the incident, the Respondent’s supervisor exhibited hostility towards him. On 18th December 2021, at approximately 11:00 a.m., he was notified that his employment was terminated due to unsatisfactory performance and sluggishness.
9. Upon seeking an explanation for his termination, the Appellant was instead instructed to surrender all the Respondent’s property and leave immediately, without being given any notice of termination or an opportunity to be heard.
10. The Appellant further stated that his December 2021 salary was not paid. Throughout his employment from 2016 to 2021, he was never granted leave, worked on all public holidays, and was not given any days off.
11. He asserted that he rendered service to the Respondent with dedication and commitment, contributed to the Respondent’s objectives, and that all his endeavours to seek redress and compensation following his dismissal were disregarded by the Respondent.
12. The termination of his employment contravened the principles of procedural and substantive fairness. Consequently, it was unfair.
The Respondent’s case before the trial court
13. The Respondent called a single witness, Mr. Charles Kyalo Ngatia, to support their defence against the Appellant’s case. As a director of the Respondent company, he testified that the Respondent operates as a private limited liability company involved in gabion and road construction projects in Kwale County under contractual arrangements.
14. The witness stated, in his witness statement turned evidence in chief, that he had known the Appellant since he had occasionally engaged him temporarily for some projects that the Respondent was undertaking. However, the Respondent did not employ him permanently at any time, owing to the seasonal nature of the Company’s projects, which permitted employment only during periods of active contracts.
15. The allegation by the Appellant that he first came into the Respondent's employment in 2016 was not true, as the Respondent had not been incorporated at that time. Its incorporation took place on 18th April 2017.
16. The witness further stated that it was the Respondent’s practice to only hire casual labourers for a period of not less than 5 days and a maximum of 20 days. They were usually paid on a week-to-week basis rather than a monthly salary, as the Appellant alleged.
17. The Appellant was never involved in an accident while working for the company.
Judgment of the lower court
18. The trial Court distilled four issues for determination: whether the Appellant was an employee of the Respondent, whether the termination of the Appellant’s employment was wrongful, whether the Appellant was entitled to the reliefs sought, and who would bear the costs of the cause. The learned trial Magistrate considered the material before her and concluded that there was no single document connecting the Appellant to the Respondent as his employer. The Appellant’s case collapsed on that ground.
The Appeal
19. Dissatisfied with the Judgment of the lower Court, the Appellant filed the instant appeal, setting forth the following grounds;
a) THAT the learned Magistrate erred in law and fact in shifting the burden of proof to the Appellant, who had proved his case to the balance of probability that he was employed by the Respondent and dismissed unfairly from his employment.
b) THAT the learned Magistrate erred in law and fact in finding that the Appellant was not an employee of the Respondent despite the Respondent admitting in paragraph 4(ii) that it employed the Appellant.
c) THAT the learned erred in law in finding that the Appellant was not an employee of the Respondent despite the Respondent failing to provide evidence about the number of days worked by the Appellant to indicate that indeed the Appellant was a casual employee.
d) THAT the learned trial Magistrate erred in law and fact in failing to appreciate that the Respondent was the custodian of all documents regarding the Appellant's employment and bore the high responsibility of producing the same, other than transferring the same responsibility to the Appellant.
e) THAT the learned trial Magistrate erred in law and fact in finding that the Appellant failed to produce any document, yet the law recognises oral contracts, for which documents may not be available.
f) THAT the learned trial Magistrate proceeded on wrong principles in arriving at the finding that the Appellant was not an employee of the Respondent.
g) THAT the learned trial Magistrate disregarded the overwhelming evidence tendered by the Appellant to prove that he was entitled to terminal dues upon unlawful dismissal from work.
h) THAT the Learned Magistrate disregarded the submissions made by the Appellant's counsel on both the law and the facts.
Analysis and determination
Issues;
20. I have carefully considered the parties' pleadings, evidence and submissions before the trial Court, and the submissions by Counsel for the parties in this appeal, and hold that this appeal turns on the following issues;
I. Whether an employer–employee relationship existed between the Appellant and the Respondent.
II. If so, whether the Appellant’s employment termination was unfair and unlawful.
III. Whether the Appellant is entitled to the reliefs sought in his pleadings before the lower court.
IV. Who should bear the costs of the appeal?
21. As this matter constitutes a first appeal, this Court is obligated to re-evaluate, re-analyse, and reconsider the evidence on record and to reach its own independent conclusion, while bearing in mind that it did not have the advantage of observing or hearing the witnesses testify. This principle was reaffirmed in Selle v. Associated Motor Boat Co. Ltd [1968] EA 123.
22. The learned trial Magistrate dismissed the Appellant’s claim solely on the ground that he failed to establish that, at the material time, an employer-employee relationship existed between him and the Respondent. As such, none of the reliefs he sought could be granted to him. This Court notes that the learned trial Magistrate premised the conclusion on the fact that none of the documents the Appellant produced before her linked him to the Respondent as his employer. Critically, this Court finds that the learned trial Magistrate did not appreciate the legal position that an employment relationship can be founded on either a written or an oral contract. Furthermore, in the absence of a written contract, should a dispute arise concerning an employment term, the employer bears the burden of proving the existence of that term.
23. Section 10[7] of the employment provides;
“If in any legal proceedings an employer fails to produce a written contract or the particulars prescribed in subsection [1], the burden of proving or disapproving an alleged term of employment stipulated in the contract shall be on the employer.”
In this Court’s view, one of the terms that, where applicable, the employer may be called upon to prove or disprove is the form and duration of the contract.
24. At this juncture, it is crucial to note that the structure of the Employment Act, 2007, is intentionally designed in such a manner that the provisions of section 107 of the Evidence Act, Cap 80, Laws of Kenya, may not be applicable in all circumstances to employment disputes, as they are in ordinary civil claims. The Act has imposed certain legal burdens on the employer to discharge, which, stricto sensu, in an ordinary civil suit and applying the general principle that he who asserts must prove, would lie on the employee. Apparently, the Respondent’s submissions miss this point.
25. In situations where the fact or a matter on which an obligation lies upon a party to prove is admitted by the adversary, such a fact or matter is deemed in law proved by dint of the admission.
26. The Appellant contends in this appeal that the Respondent admitted the existence of an employment relationship between it and him, and as such, it was incorrect for the learned trial Magistrate to dismiss his claim on the ground that he didn’t tender documents to establish the relationship. This Court notes that in paragraph 4[ii] of the Reply to Memorandum of Claim, the Respondent averred;
“ After the Respondent’s incorporation in 2017, the Respondent never employed the Claimant but only engaged him on a casual basis of week to week payment whenever necessary.”
And their witness in his witness statement, their witness stated;
“ 5. THAT the Claimant herein is known to me since I have engaged him temporarily on some projects that we have been carrying out, and at no point was he a permanent employee in the company, owing to the fact that the projects we carry out are seasonal and we only hire when we have an ongoing contract.”
27. In his evidence before the trial Court, the Respondent’s witness explicitly stated that the Appellant was one of the casual employees of the defendant company.
28. Based on the foregoing, regardless of the Respondent's label, I conclude that an employment relationship existed between the Appellant and the Respondent. The learned trial Magistrate erred in law by finding that the Respondent had failed to establish the existence of such a relationship, notwithstanding the Respondent's conspicuous admissions acknowledging its existence.
29. Before I proceed to examine the subsequent issue for determination, it is pertinent to note that the Respondent tied up paragraph 4 of his pleadings by a commitment that, with the leave of the trial Court, he would submit documentary evidence to substantiate the matters contained therein. In my view, including the fact that the Appellant was consistently employed as a casual worker at various times, and indeed, those times he was employed. Ultimately, whether deliberately or inadvertently, they did not fulfil this obligation.
30. Having found that there existed an employment relationship as I have hereinabove, I now turn to consider whether the Appellant’s employment was terminated unfairly.
31. In a claim alleging unfair termination or wrongful summary dismissal, Section 47[5] outlines two sequential legal burdens for the employee and employer. The employee must first prima facie establish that an unlawful termination or wrongful dismissal occurred. Only then does the evidential burden shift to the employer, who must show that the termination or dismissal was justified. See also Galgalo Jarso Jillo v Agricultural Finance Corporation [2021] eKLR.
32. The Appellant explicitly averred in his pleadings and explained in his witness statement [turned part of his evidence in chief], and oral evidence before the trial Court, how the termination of his employment occurred. In my opinion, based on his evidence before the trial Court, he prima facie demonstrated that the Respondent terminated his employment without compliance with procedural and substantive fairness. The evidential burden subsequently shifted to the Respondent, and the subsequent question to be addressed is whether the Respondent fulfilled their legal obligation envisaged under the provision.
33. It is worth noting that, in his evidence under cross-examination, the Respondent’s witness sought to shift the Respondent’s position regarding the Appellant’s employment by asserting that the Appellant was an employee of those to whom the Respondent had subcontracted work during its projects. As this position ran counter to what was pleaded, nothing would turn on it. Section 43 of the Employment Act, 2007, places a duty on the employer, in a dispute regarding the termination of an employee’s employment, to prove the reason[s] for the termination. Undoubtedly, where the employer fails to discharge the duty, the termination shall be deemed unfair, by virtue of the provisions of section 45 of the Act.
34. In the case of Muthaiga Country Club vs Kudheiha Workers [2017] eKLR cited by the Appellant, the Court of Appeal stated;
“The grievants having denied, through their witness, the reasons given for their dismissal, discharged their obligation under Section 47[5] of the Act by laying the basis for their claim that an unfair termination of employment had occurred. This brought into play Section 43[1] and 47[5] of the Act that places the burden upon the Appellant to prove the alleged reasons for termination of the grievants’ employment, and justify the grounds for termination of employment”
35. I think that, given the position taken by the Respondent regarding the employment relationship between the Respondent and the Appellant, the Respondent’s vision got blurred. They didn’t bother to drive any evidence before the trial court to establish the reason[s] for the termination of the Appellant’s employment, and that the reasons were valid and fair. Consequently, I am unable to conclude that the Respondent had a valid and fair reason to terminate the Appellant’s employment. The deeming effect comes into place. The termination was unfair by operation of law under Section 45 of the Employment Act.
36. Section 41 of the Employment Act provides for a mandatory procedure that any employer contemplating terminating an employee’s employment or summarily dismissing an employee must conform to. A mandatory procedure that encompasses three vital ingredients;
I. The notification ingredient- The employer must notify the affected employee of its intention and the grounds for the intended action.
II. The hearing ingredient- The employee must be accorded an adequate opportunity to make a representation on the grounds. Conjoined to this right, is right to accompaniment, the employee shall be allowed to be accompanied during the hearing by a colleague, or a trade union representative [where he is a member], and
III. The consideration ingredient- before taking a final decision on the matter, the employer must consider the3 representations made by the employee and or the accompanying person.
37. Undoubtedly, the Respondent did not place evidence before the trial Court to show that these dictates of procedural fairness were adhered to. Consequently, I find that the termination of the Appellant’s employment was procedurally unfair.
38. Maybe heed needs to be taken. In the distinctive architecture of the provisions of the Employment Act 2007, and, more particularly, those concerning the standard of proof and what must be proved by whom in employment disputes, an employer cannot afford to be evasive about the existence of an employer-employee relationship and the form of employment. Embracing an evasive approach would definitely cloud their focus on discharging their legal burdens.
39. Having found as I have hereinabove, I now turn to consider whether or not the Appellant is entitled to the reliefs that he sought before the lower court. The Respondent having failed to place convincing evidence before the trial Court that the Appellant was a casual employee, I have no hesitation in concluding that the Appellant’s employment was terminable under section 35 of the Employment Act by twenty-eight days’ notice, a notice which was not issued. As a result, I return that he is entitled to notice pay under section 36 of the Employment Act, one month’s salary in lieu of notice.
40. The Appellant contended that he was not paid a salary for the 18 days he worked in December 2021. The Respondent did not place forth evidence to discount this claim. I award him the relief.
41. Section 49 of the Employment Act 2007 empowers the Court to grant compensatory relief to an employee who has successfully challenged their employer’s decision to terminate their employment unfairly. However, it is important to note that the power is exercised at the discretion of the court, depending on the circumstances of each case.
42. I have carefully considered the length of service by the Appellant to the Respondent, the fact that the termination of his employment was without any proven justifiable reason, and that it was not demonstrated that the Appellant did influence the termination in any manner, and conclude that the Appellant ought to have been granted the compensatory award. I hereby grant him four months’ gross salary for the unfair termination of his employment.
43. The Appellant sought compensation for house allowance [KShs. 288,000]. I have carefully reviewed his pleadings, witness statement, and oral testimony before the trial court and see no factual or evidentiary basis for the relief sought. It would not be available to the Appellant. The same thing applies to relief sought under the head “Unpaid leave days worked.
44. Annual leave is a statutory right of an employee under section 28 of the Employment Act. Accordingly, the provision imposes a corresponding duty on the employer to facilitate the enjoyment of that right. The Appellant asserted that throughout his employment, the Respondent did not permit him to take leave, and, as a result, he is entitled to compensation for the leave days earned but not utilised. Under section 90 of the Employment Act, the claim falls within the category of continuous injury claims. It ought to have been initiated within twelve months of the date of cessation of the wrong [the date of termination, in the context of the suit in the lower court], but it was not. For that reason, the relief would not be granted to the Appellant.
45. Equally, the claim for unremitted NHIF contributions for sixty four months, was not evidentiary supported. It was just thrown to the trial Court. Consequently, it lacked merit.
46. In the upshot, the Appellant’s appeal succeeds on the following terms;
I. The learned trial Magistrate’s judgement is hereby set aside.
II. In place thereof, a judgment allowing the Appellant’s claim in the lower court suit is hereby entered in the following terms;
a. A declaration that at all material times the Appellant was an employee of the Respondent, whose employment was terminated unfairly.
b. One month’s salary in lieu of notice, KShs. 30,000.
c. Compensation pursuant to the provisions of Section 49[1][c] of the Employment Act, four [4] months gross salary, KShs. 120,000.
d. Unpaid salary for the 18 days worked in December 2021, KShs. 18,000.
e. Costs of the suit.
f. Interest on the awarded sum at court rates from the date of this suit till full payment.
III. Costs of this Appeal.
Read Signed and Delivered this 29th Day of January 2026.