Nyanchongi v Seb Estate Limited (Appeal E113 of 2024) [2025] KEELRC 1594 (KLR)
The bottom line
#Kenya's Employment Court ruled that paying someone's salary and supervising them makes you their employer, awarding a dismissed security guard over Kshs. 257,000.
What this practically means
#Executive summary
#Key legal issues
#Existence of an employer-employee relationship
The relationship was proved on a balance of probability; payment of salary and supervision established control
The claimant testified he was engaged and paid salary by the respondent. RW1 Edwin Gitau admitted paying the salary and supervising, alleging he acted for an undisclosed landlord. No contract evidencing the agency was produced, the demand letter was forwarded to the respondent's advocate rather than the landlord, and the alleged termination of the management contract was unproved. Payment and supervision pointed to the respondent as employer.
Failure to join the alleged landlord
The respondent, having alleged liability of a landlord, ought to have issued a third-party notice; failure meant it took responsibility for the claim
In civil proceedings, a sued party alleging that a third party is liable must take out third-party proceedings. The respondent did not join the alleged landlord whose identity was never disclosed, and produced no contract evidencing the agency. It therefore bore responsibility for the claim.
Fairness of termination
The termination was unfair and unprocedural; the adopted judgment found termination without notice or reason contrary to section 35(1) of the Employment Act
Adopting the judgment in Milimani Commercial MCELRC/E1954/2021 by Hon. Ogonda involving a co-employee dismissed at the same time, the court found the respondent gave no reason and no notice, contrary to sections 35(1), 41 and 45 of the Employment Act, entitling the claimant to compensation under section 49(1)(c) and one month's notice pay.
Reliefs and quantification
Total award of Kshs. 257,248.60 covering notice pay, leave days and underpayment, limited to three years, with interest and costs
Guided by the adopted judgment, the court allowed one month's notice pay, leave days of Kshs. 26,668.60 and underpayment of Kshs. 135,576 limited to three years under Charles Kariuki Mwangi v Intersecurity Services Limited. Severance, service pay and overtime were disallowed for want of proof.
Legal principles established
#- A first appellate court must reconsider and evaluate the evidence and draw its own conclusions, though making allowance for not having seen or heard the witnesses
- A party alleging that a third party is liable must take out third-party proceedings, failing which it bears responsibility for the claim
- A termination must be both substantively justified and procedurally fair to pass the fairness test
- Employment Act claims are limited to three years' recovery
Court orders
#- 1.The Judgment and Orders of the Honourable W.K. Micheni (CM) delivered on 8th March 2024 in MCELRC No. 1958 of 2021 set aside
- 2.Judgment entered for the claimant against the respondent
- 3.Notice pay of 1 month - Kshs. 13,572
- 4.Leave days - Kshs. 26,668.60
- 5.Underpayment - Kshs. 135,576
- 6.Total award of Kshs. 257,248.60 with interest from date of filing suit
- 7.Costs of the suit to the claimant
- 8.Costs of the appeal to the appellant
- On appeal from
- Milimani Chief Magistrate Employment and Labour Relations Court
- MCELRC No. 1958 of 2021
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court (magistrates' court appeal), no specific constitutional provision cited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyanchongi v Seb Estate Limited (Appeal E113 of 2024) [2025] KEELRC 1594 (KLR)", Case Analysis (2025). Employment and Labour Relations Court Appeal arising from MCELRC No. 1958 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1594/eng@2025-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.