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ELRCDismissedMemorandum of Appeal dated 4th April, 2023· [2025] KEELRC 521 (KLR)

Mwangi v All Time Security Ltd (Appeal E044 of 2023) [2025] KEELRC 521 (KLR)

Employment and Labour Relations Court
24 February 2025
2,654 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A worker claiming unfair dismissal in Kenya must prove an employment relationship existed, or the court cannot award any compensation.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Nairobi against the judgment of Honourable Lucy Njora (Mrs) C.M delivered on 8th March 2023 in CMEL E1207 of 2020, in which the Appellant's claim for damages and terminal dues following an alleged oral termination on 14th August 2019 was dismissed for failure to prove employment. The appeal was disposed of by written submissions. The Appellant, who said he worked as a night guard from February 2014, relied on a bank statement described as a Salary/Remittance account showing two cash deposits in July 2019, and on the Respondent's non-response to a sub-county labour officer's letter. The Respondent denied the employment relationship in its defence and called no witness. Framing two issues - whether the trial court erred in not finding an employment relationship, and entitlement to reliefs - the court applied the Peters v Sunday Post standard of review on first appeal, section 107(1) of the Evidence Act and section 47(5) of the Employment Act. It held that the deposits were cash deposits not linked to the Respondent, that the Appellant produced no fuller statements for the five years claimed, and that the burden of proving both employment and unfair termination lies exclusively on the employee, unrelieved by the employer's failure to rebut. The court affirmed the trial court's finding, declined jurisdiction over the consequential reliefs, and dismissed the appeal with costs to the Respondent.

Key legal issues

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01

Whether an employment relationship between the Appellant and the Respondent was proved

Holding

The Appellant failed to prove the employment relationship on a balance of probabilities; the trial court's finding was upheld.

Reasoning

The bank statement, though described as a Salary/Remittance account, showed only two cash deposits in July 2019 with no link to the Respondent as depositor, and the Appellant produced no fuller statements for the five years he claimed to have worked. The labour office complaint could not substitute proof of employment. Under section 47(5) of the Employment Act the burden of establishing employment and unfair termination lies exclusively on the employee, and the employer's failure to call witnesses does not shift that burden.

p. 5
02

Entitlement to reliefs (damages, notice pay, underpayment, unpaid leave, compensation)

Holding

No reliefs could be granted because the foundational employment relationship was not established.

Reasoning

Once the primary finding on employment failed, the court held it lacked jurisdiction to consider consequential reliefs. The grounds of appeal on unfair termination and assessment of damages were therefore incapable of success independently of proof of employment. The appeal as a whole was dismissed with costs to the Respondent.

p. 6
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Standard of review on first appeal

Holding

The first appellate court must reconsider and re-evaluate the evidence and draw its own conclusions while allowing for the trial court's advantage of seeing witnesses.

Reasoning

The court adopted the classic Peters v Sunday Post framework: it re-evaluated the documentary evidence itself rather than merely reviewing the trial court's reasoning, and reached the same conclusion on the sufficiency of the proof of employment.

p. 4

Legal principles established

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  • The burden is exclusively on the employee to prove the employment relationship and unfair termination under section 47(5) of the Employment Act, and the failure of the employer to call evidence in rebuttal does not discharge that burden.
  • The jurisdiction of the Employment and Labour Relations Court in employment matters is conditioned on the existence of an employment relationship, which the court must first satisfy itself of.
  • A claimant relying on an oral employment contract must adduce corroborative evidence, and where the employer holds supporting documents, the employee must serve a production notice.

Court orders

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  1. 1.The appeal is dismissed for lack of merit
  2. 2.Costs of the appeal to the Respondent
  3. 3.The finding of the trial court that the appellant did not sufficiently prove an employer-employee relationship is upheld
On appeal from
Chief Magistrate's Court (employment and labour relations)
CMEL E1207 of 2020
Jurisdiction invoked
First appellate jurisdiction over the trial magistrate's judgment in an employment claim under the Employment Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mwangi v All Time Security Ltd (Appeal E044 of 2023) [2025] KEELRC 521 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 4th April, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/521/eng@2025-02-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.