Mwangi Kenyanya v Great Rift Express Shuttle Services (Employment and Labour Relations Appeal E010 of 2021) [2025] KEELRC 433 (KLR)
The bottom line
#An Eldoret court confirmed the car cleaner was an employee, but his unfair termination claim failed because he could not prove how or by whom he was dismissed.
What this practically means
#Executive summary
#Key legal issues
#Whether the Appellant was an employee or an independent contractor
The Appellant was an employee of the Respondent within the meaning of section 2 of the Employment Act.
The court adopted the Shena Security test that payment by way of commission indicates a contract for service. The Respondent's witness testified the Appellant worked daily and was paid a commission daily for work done, which the court found indicative that the Appellant was an employee within section 2 of the Employment Act.
Whether the Appellant's employment was unfairly terminated
The Appellant failed to prove unfair termination under section 47(5) of the Employment Act.
The Appellant did not explain the circumstances of the termination, who terminated the employment or how it occurred. Under section 47(5), the employee bears the initial burden of proving unfair termination before the burden shifts to the employer. The Respondent's position was that the Claimant simply vanished and his employment was never terminated.
Whether the Appellant is entitled to the reliefs sought
Only leave pay in lieu for 4 years at 21 days per year (Kshs. 48,461.50) and a certificate of service were awarded; all other heads failed for lack of proof or inapplicability.
Having found no unfair termination was proved, the declaration, notice pay, compensation and aggravated damages were refused. Public holiday, overtime, rest days and paternity leave claims failed on evidence; housing allowance was held paid on a consolidated basis; severance was inapplicable absent redundancy.
Legal principles established
#- Where payments are made by way of commission on work done on a daily basis, this indicates a contract of service rather than a contract for service.
- It is the burden of the employee to first prove that unfair termination or wrongful dismissal occurred before the burden shifts to the employer to justify the termination.
- On a first appeal, the court must re-evaluate the evidence and draw its own conclusions, bearing in mind it did not see or hear the witnesses.
Court orders
#- 1.A declaration that the Appellant was an employee of the Respondent
- 2.Leave dues of Kshs. 48,461.50 awarded to the Appellant
- 3.The Respondent is directed to issue the Appellant with a Certificate of Service
- 4.The Judgment of the Trial Court is set aside in its entirety and substituted with the above orders
- 5.The Respondent shall bear 50% of the Appellant's costs of the Appeal
- On appeal from
- Eldoret Chief Magistrate's Court (ELRC No. 30 of 2019)
- Eldoret CMELRC No. 30 of 2019
- Jurisdiction invoked
- First appeal from the subordinate court in an employment dispute (Employment and Labour Relations Court appellate jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwangi Kenyanya v Great Rift Express Shuttle Services (Employment and Labour Relations Appeal E010 of 2021) [2025] KEELRC 433 (KLR)", Case Analysis (2025). Eldoret Employment and Labour Relations Court Appeal (Memorandum of Appeal dated 31st August 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/433/eng@2025-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.