Tascon Security Ltd v Waswa [2026] KEELRC 14946 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT & LABOUR RELATIONS

COURT OF KENYA AT NAIROBI

APPEAL NO. E104 OF 2023

TASCON SECURITY LIMITED…..………...........……………APPELLANT

VERSUS

METRINE NALIAKA WASWA...……….............................RESPONDENT

(Being an appeal from the judgment and decree of Hon. C. A. Okello (PM) in Nairobi CMELRC No. 2346 of 2019 delivered on 24th May 2023)

JUDGMENT

1. The Respondent instituted this suit before the Magistrate’s Court at Nairobi through a Memorandum of Claim dated 11th December 2019, alleging unlawful termination of employment and non-payment of terminal dues. Her case was that she was employed by the Appellant from July 2012 until 15th November 2017, when her supervisor directed her to hand over her uniform and vacate the premises. She contended that her summary dismissal was both substantively and procedurally unfair. She further averred that during the period of her employment, she did not proceed on leave and the Appellant failed to remit her NSSF deductions. In addition, she claimed that she was underpaid, earning Kshs. 8,000/- at the time of termination, and was not paid a house allowance. Consequently, she sought the following reliefs:

(1) A declaration that her dismissal from employment was unfair and unlawful;

(2) Kshs. 508,454/- being compensation, salary in lieu of notice, unpaid leave days, service pay, unpaid house allowance and underpayments; and

(3) Costs and interests of the suit.

2. The Appellant opposed the claim through a Statement of Response dated 24th February 2020. It denied the Respondent’s averments and invited her to strict proof thereof.

3. At the hearing, the Respondent testified on her own behalf, while Mr. Fredrick Nyongesa, the Appellant’s General Manager, testified on behalf of the Appellant. The Respondent testified that upon her employment, she was initially assigned to Subaru Kenya along Mombasa Road before being transferred to Mvuli House. In support of her case, she produced an extract of the Occurrence Book attached to her Supplementary List of Documents dated 29th May 2020, which she contended demonstrated that she reported to work at 6.50a.m. and left at 6.00p.m.

4. On his part, the Appellant’s witness testified that although the Respondent had offered herself for employment in July 2012, she was found unsuitable because she lacked the basic requirements, namely an identification card, a work permit as she was a foreigner, school testimonials and a Certificate of Good Conduct. It was therefore his contention that the Respondent had never been employed by the Appellant.

5. Upon consideration of the pleadings and evidence, the Trial Magistrate found that the Respondent had been unlawfully terminated from employment. The Trial Court was of the view that the Appellant had failed to disprove the existence of an employer-employee relationship and had, in addition, failed to comply with section 41 of the Employment Act. Consequently, the Trial Court awarded the Respondent Kshs. 397,972/- comprising five months’ salary as compensation, one month’s salary in lieu of notice and other terminal dues. The Respondent was also awarded the costs of the suit.

6. Aggrieved by that decision, the Appellant preferred the present appeal on the following grounds:

i) That the Learned Magistrate misinterpreted the provisions of section 10(7) of the Employment Act, 2007 considering that there was no written contract of service in existence between the Appellant and the Respondent.

ii) That the Learned Magistrate erred in law and fact in finding that the Appellant failed to produce a written contract with the respondent according to section 10(7) of the Employment Act despite the provision applying to an existent written contract between an employer and employee which was not the case in the trial suit.

iii) That the Honourable Magistrate erred in law and in fact in shifting the burden of proof of the existence of an employment relationship on the Appellant instead of the Respondent who claimed to be an employee.

iv) That the Learned Magistrate erred in law and in fact in finding that the Respondent was an employee of the Appellant when there was no evidence whatsoever to prove that.

v) That the Learned Magistrate showed prejudice by ignoring the testimony of the Appellant’s witness which demonstrated that the Respondent had never been its employee.

vi) That the Learned Magistrate erred in law and fact by totally ignoring the Appellant’s Counsel’s submissions on the issue of law and evidence thereby arriving at an erroneous decision.

vii) That the Learned Magistrate erred in law and fact in coming to the conclusion that she did contrary to the evidence on record.

viii) That the Learned Magistrate erred in law and fact in holding that the respondent is entitled to compensation of Kshs. 397,972/- while in fact she was not entitled to any compensation and/or dues.

7. On the strength of the foregoing grounds the Appellant urges the court to allow the appeal, set aside the Trial Court’s Judgment and substitute it with an order dismissing the Respondent’s claim. It also urges the Court to grant it costs of the appeal.

8. The appeal was canvassed by way of written submissions.

Appellant’s Submissions

9. In support of the appeal the Appellant identifies the following issues for determination:

(a) Whether the burden of proving an employer-employee relationship lay on the Appellant;

(b) Whether section 10(7) of the Employment Act relates to existence of an employment relationship or the terms of employment.

(c) Whether the Respondent was entitled to the awards in the judgement.

10. On the burden of proving an employer-employee relationship, the Appellant submits that the Trial Magistrate erred in placing the burden upon it. It maintains that the burden rested on the Respondent as the party alleging its existence. From the outset the Appellant maintains that the existence of an employer -employee relationship is foundational to an employment claim and must first be established before the Court can determine any other employment rights. In support, it relies on Kenya Union of Commercial Food and Allied Workers v Mwana Black Smith Limited [2013] eKLR, where the Court held that a claimant seeking employment rights must prove the existence of an employment relationship, and Joseph Munene Murage v Salome Ndung’u [2019] eKLR, where the Court held that determination of the other heads of claim depends on a finding that an employment relationship existed. The Appellant further relies on Kaiga v Das [2023] KEELRC 2194 (KLR), in which the Court underscored that an employer- employee relationship formed the cornerstone of the court’s jurisdiction under Article 162(2)(b) of the Constitution and section 12 of the Employment and Labour Relations Court Act, and also held that where the alleged employer denies the relationship, the burden of proving it lies with the claimant. It asserts that the Respondent fell short of the evidentiary burden despite producing an NSSF statement, a demand letter, the Regulation of Wages Order, 2017, and an extract of a daily occurrence book as the documents did not establish an employment relationship. Particularly, it highlights that the NSSF statement did not identify the Appellant as her employer, while the handwritten occurrence-book extract was contested and contained nothing linking it to the Appellant. It also draws attention to the fact that the Respondent failed to produce evidence of payment of wages, such as bank or M-Pesa statements. In this regard, the Appellant relies on Wachira v Mbote & another [2022] KEELRC 12992 (KLR), where the Court observed that evidence of M-Pesa payments would have assisted in establishing the alleged employment relationship, before finding that the claimant had failed to prove the relationship on a balance of probabilities. The Appellant further relies on Samuel Wambugu Ndirangu v 2NK Sacco Society Limited [2019] eKLR, where the Court identified selection and engagement, payment of wages, the power of dismissal and control of the employee’s conduct as relevant elements in determining the existence of an employer-employee relationship.

11. As for the import of section 10(7) of the Employment Act, the Appellant submits that the Trial Magistrate misconstrued the provision by applying it to determine the existence of an employer-employee relationship. It asserts that the provision applies to disputed terms of employment after the employment relationship has either been admitted or sufficiently established, but does not shift the initial burden of proving the existence of the employment relationship from the employee to the employer. The Appellant relies on Yaa v SGA Security Solutions Limited [2022] KEELRC 1553 (KLR), where the Court held that section 10(7) applies where a dispute arises concerning the terms of a contract of service required to be reduced into writing, in which case the employer bears the burden of proving or disproving the disputed term by producing the written contract or particulars of that term. The Appellant therefore submits that the provision could only have been invoked after the Respondent had established that she was an employee of the Appellant.

12. On whether the Respondent is entitled to the awards in the judgment, the Appellant submits that the Respondent’s failure to prove the existence of an employment relationship was fatal to the entire claim. It contends that the alleged five-year period of employment could only become an issue after the employment relationship had first been established. Consequently, section 10(7) could not be invoked to require the Appellant to disprove a term of employment which it maintained did not exist. The Appellant further submits that the awards made by the Trial Court were contested and that it could not produce records relating to a non-existent employment relationship. It also contends that the Trial Court erred by failing to subject the awards to statutory deductions as required under section 49(2) of the Employment Act. It therefore urges the Court to allow the appeal, dismiss the Respondent’s claim and award the Appellant the costs of the appeal. In support, it reiterates the holding in Kenya Union of Commercial Food and Allied Workers v Mwana Black Smith Limited (supra), where the Court dismissed an employment claim for failure to adduce evidence establishing the existence of an employment relationship.

Respondent’s Submissions

13. On her part the Respondent identifies the following issues for determination:

(i) Whether the trial court misinterpreted and misapplied the spirit of section 10(7) of the Employment Act, and whether it shifted the burden of proof;

(ii) Whether there was sufficient evidence to prove the existence of employment; and

(iii) Whether there was any error in the trial court’s assessment of compensation.

14. On the first issue the Respondent submits that she proved her employment status by producing extracts of the Daily Occurrence Book from the Appellant’s assignment at Discount Shopping Centre, South B, showing that she continuously took and handed over duty to one Mr. Amos Indunya from September 2013 to November 2017. She asserts that the Occurrence Book constituted sufficient evidence of her employment and that the Appellant did not produce any contrary Occurrence Book or other documentary evidence to disprove her engagement. The Respondent therefore submits that the evidential burden to disprove her employment shifted to the Appellant, which it failed to discharge. To buttress her position, she relies on section 107, 108, and 109 of the Evidence Act. In particular, she cites section 107(1) of the Act that behoves a party desiring any court to issue judgment dependent on the existence of facts, to prove that those facts exist. The Respondent also cites Raila Amolo Odinga & another v IEBC & 2 others [2017] eKLR, for the proposition that although the legal burden of proof remains with the claimant, the evidential burden may shift depending on the sufficiency of the evidence presented by the parties.

15. On whether there was sufficient evidence to establish the existence of an employment relationship, the Respondent maintains that the evidence on record justified the Trial Court’s finding. She draws attention to page 63 of the Record of Appeal, where her colleague, Mr. Amos Indunya, confirmed having receiving her October 2017 salary and handing it over to her on 8th November 2017. She submits that the Appellant merely denied employing her but did not controvert the evidence contained in the Occurrence Book or challenge the fact that Mr. Amos Indunya was its employee through whom she received her wages. She contends that it was implausible for her to have consistently taken and handed over duties at the Appellant’s assignment from September 2013 to November 2017 without being an employee. She therefore urges the Court to uphold the Trial Court’s finding that an employer-employee relationship existed.

16. On whether the Trial Court erred in its assessment of compensation the Respondent contends that the Appellant failed to comply with sections 41, 43 and 45 of the Employment Act. She reiterates that her supervisor Mr. Mark verbally terminated her employment without giving any reason or affording her an opportunity to be heard. She relies on Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Limited [2014] KEELRC 813 (KLR), where the Court underscored the mandatory nature of section 41 and held that failure to comply with its requirements renders a termination unfair.

17. On the question of remedies, the Respondent submits that section 49(1)(c) of the Employment Act empowers the Court to award compensation of up to twelve months’ gross wages for unfair termination. Relying on D.K. Njagi Marate v Teachers Service Commission [2020] eKLR, she submits that she was entitled to the compensation awarded by the trial court. She further relies on Kenfreight (E.A) Limited v Benson K. Nguti [2019] eKLR, where the Court of Appeal held that upon a finding of unlawful termination, the appropriate remedies are those provided under Section 49 of the Employment Act. The Respondent consequently urges this Court not to interfere with the Trial Court’s exercise of discretion and to uphold the judgment.

Disposition

18. This being a first appeal, I am obliged to evaluate and examine the record before the Magistrates' Court and the evidence presented before that Court in order to arrive at my own conclusion. This principle of law was enunciated in the celebrated case of Selle v Associated Motor Boat Co. Ltd [1968] EA 123 where the Court of Appeal outlined the duties of a first appellate court as follows:

"I accept counsel for the respondent's proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect."

[Emphasis supplied]

19. Having properly warned myself that I neither saw nor heard the Appellant testify in trial, I have duly evaluated the evidence presented in the Trial Court, and which evidence and documents in support thereof, are before this Court and I have come to the following determination.

20. The Respondent was an employee of the Appellant as proved by the extract of the occurrence book. Despite assertions to the contrary, there was evidence of employment which permitted the Learned Magistrate to draw the inference under section 10(7) of the Employment Act. The Appellant as the employer had every burden to avail employment records, but it failed to do so and could therefore not challenge the account of the Respondent who was able to discharge the burden of being an employee.

21. As regards the manner of termination, the Respondent was able to show that the dismissal was contra statute as it offended the law and specifically impacted sections 41, 43, 45 and 47 of the Employment Act.

22. On the quantum, unless there was material departure from the principles of awarding the remedies under section 49, there is nothing to affect in the Appeal. The Learned Magistrate duly considered the factors laid out in law and awarded a moderate sum in compensation. An appellate court should only interfere with an award of damages where it is demonstrated that the Trial Court considered irrelevant factors, failed to consider relevant ones, or made an award that is manifestly excessive or inordinately low.

23. In the determination of this Court, the appeal was unmerited and is only fit for dismissal. Appeal dismissed with costs to the Respondent.

It is so ordered.

Dated and delivered at Kisumu this 3rd day of November 2026

Nzioki wa Makau, MCIArb.

JUDGE