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ELRCDismissedMombasa ELRC Appeal from Mombasa CMELRC No. E658 of 2021· [2025] KEELRC 1950 (KLR)

Mohamed & 2 others v Pothiwalla t/a Songoro Boat Services (Appeal E019 of 2024) [2025] KEELRC 1950 (KLR)

Employment and Labour Relations Court
30 June 2025
MMM. Mbarũ
1,471 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed that a gate pass and shared boat earnings do not prove employment, so the workers lost their unfair termination claims.

What this practically means

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Executive summary

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This was a first appeal against the judgment of the learned magistrate in Mombasa CMELRC No. E658 of 2021 delivered on 8 February 2024, which had dismissed the appellants' employment claims. The appellant, Salim Said Mohamed, claimed he was employed as an engineer and coxswain from 2 February 2011 until his alleged unfair dismissal on 18 July 2021, and sought notice pay, salary for 18 days, house allowance for 118 months, nine years' unpaid leave, twelve months' compensation, unremitted NHIF, service pay and costs. The respondent denied any employment relationship, asserting the appellants were hired among other personnel for a boat-hiring business, assigned mechanic/brokerage duties, and paid 40% of the day's earnings to be divided among themselves, with no obligation on the appellants to continue hiring boats. The trial court found no employer-employee relationship, holding the records demonstrated a business partnership. On appeal, the court re-examined the evidence. It held that while the appellants relied on a gate pass in a letter dated 31 October 2018 to access the port, a gate pass alone cannot confirm employment. Applying the control and wage tests distinguishing employees from independent contractors, the court found the appellants were not under the respondent's control and were paid by sharing earnings rather than a wage. The variable payment records were inconsistent with the claimed regular salary. The appellants also failed to discharge their burden under Sections 43 and 47(5) of the Employment Act of proving unfair termination. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Existence of an employer-employee relationship

Holding

No employment relationship existed; the arrangement was a commercial one where earnings were shared on a percentage and the appellants were not under the respondent's control

Reasoning

The court distinguished an employee hired for a service from an independent contractor engaged under a commercial transaction, applying the control test and wage test. The gate pass issued to facilitate port access did not evidence employment. Payment records showed variable payments inconsistent with a regular salary of Ksh. 22,000 or 25,000. The appellants therefore failed to prove employment on a balance of probabilities.

p. 3
02

Burden of proof of unfair termination

Holding

The appellants failed to discharge the burden under Section 47(5) of the Employment Act of proving that a termination occurred and was unjustified or procedurally defective

Reasoning

The court applied Section 47(5): an employee claiming unfair termination must produce evidence that a termination took place and lacked substantive justification or was procedurally defective. Only once a prima facie case is established does the burden shift to the employer. Since the employment relationship itself was not proved, the threshold burden was never discharged.

p. 4

Legal principles established

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  • On a first appeal the court must re-examine the evidence and draw its own conclusions while bearing in mind that the trial court heard the witnesses testify
  • A gate pass alone cannot confirm an employment relationship
  • An employee is subject to the employer's control and receives a wage, whereas an independent contractor is paid based on a business model and agreement on sharing returns
  • Under Section 47(5) of the Employment Act, an employee claiming unfair termination bears the burden of showing the termination took place and lacked justification or was procedurally defective; the burden then shifts to the employer

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs awarded to the respondent
On appeal from
Magistrates' Court (ELRC), Mombasa
Mombasa CMELRC No. E658 of 2021
Jurisdiction invoked
First appellate jurisdiction over the trial court's judgment (this is a first appeal)

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, "Mohamed & 2 others v Pothiwalla t/a Songoro Boat Services (Appeal E019 of 2024) [2025] KEELRC 1950 (KLR)", Case Analysis (2025). Mombasa ELRC Appeal from Mombasa CMELRC No. E658 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1950/eng@2025-06-30

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