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ELRCDismissedNot stated in the judgment· [2025] KEELRC 2228 (KLR)

Amayai v Thiga (Employment and Labour Relations Appeal E169 of 2024) [2025] KEELRC 2228 (KLR)

High Court of Kenya (Employment and Labour Relations appellate jurisdiction)
23 July 2025
DMD. K. Njagi Marete
1,272 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that a security guard paid through a communal tenants' kitty had no personal employer and had abandoned his job, not been fired.

What this practically means

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Executive summary

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This is a first-instance appellate judgment of the High Court (ELRC docket) dismissing an appeal against the decision in MCELRC No. E1472 of 2020 delivered on 2nd May 2024, in which the appellant's claims for unfair termination and underpayment were dismissed in their entirety. Alongside the appeal, the appellant had filed a Notice of Motion dated 13th June 2024 seeking enlargement of time to file the appeal out of time. The court framed four issues: timeliness and excusal of delay; existence of an employment relationship; unlawful termination; and entitlement to reliefs. On timeliness, the court accepted that the delay of 8 days was not inordinate, that obtaining certified copies of the judgment and proceedings explained it, and that the respondent had shown no prejudice, and accordingly admitted the appeal out of time. On the merits, the court held that although the respondent paid the appellant's salary, she was not his employer in her personal capacity: she merely acted as a conduit for payments made by all the tenants collectively through a communal kitty, and the appellant admitted in cross-examination that there was no contract with her and that his employers were the tenants collectively. Section 2 of the Employment Act, 2007 (which includes agents within the definition of employer) did not assist him on those facts. On termination, the court found the appellant went on leave on 1st April 2020 and returned on 28th June 2020 without communicating his whereabouts, after which his security duties were given to another person; this was abandonment, not termination. The appeal was therefore dismissed with each party bearing their own costs.

Key legal issues

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01

Timeliness of the appeal and extension of time

Holding

The delay was excused and the appeal admitted out of time

Reasoning

Judgment was delivered on 2nd May 2024; certified copies requested on 6th May 2024 were received on 31st May 2024. Section 79G permits filing out of time on 'good and sufficient cause'. Applying the Salat factors (reasonableness of delay, absence of prejudice, no undue delay in applying), the court found the delay not inordinate and the explanation plausible, and no prejudice was demonstrated by the respondent.

p. 3
02

Existence of an employment relationship between the appellant and the respondent

Holding

No employment relationship existed between the parties; the lower court's finding was correct

Reasoning

Although Section 2 of the Employment Act, 2007 defines an employer to include an agent, the court found the respondent acted merely as a conduit for payments made by all the tenants collectively through a communal kitty. The appellant admitted in cross-examination that there was no contract with her and that his true employers were all the tenants. Payment of salary alone did not make her the employer in her personal capacity.

p. 3
03

Whether the appellant was unlawfully terminated

Holding

The appellant abandoned his duties; there was no termination

Reasoning

The appellant went on leave on 1st April 2020 and returned on 28th June 2020, well past his scheduled return date, without communicating his whereabouts. The respondent hired another person for the security duties. Payment of part salary via M-Pesa did not prove termination. In the absence of evidence of termination, the claim of unlawful termination failed.

p. 3

Legal principles established

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  • A short delay in filing an appeal, coupled with a plausible explanation and absence of prejudice to the respondent, will be excused under Section 79G of the Civil Procedure Act
  • An agent who merely channels payments from third parties does not become the employer in her personal capacity; an employment relationship may be inferred from conduct, including admissions in cross-examination

Court orders

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  1. 1.The Notice of Motion dated 13th June 2024 seeking enlargement of time was allowed and the appeal admitted out of time
  2. 2.The appeal was dismissed
  3. 3.Each party to bear their own costs of the appeal

Authorities

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Legislation

  • Employment ActSection 2 (definitions of employee and employer, including agents)
  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 79G
  • Evidence Act, Chapter 80, Laws of KenyaSections 107-109

Cases cited (3)

  • Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others
    [2014] eKLR
  • Kenya Hotels & Allied Workers Union v Alfajiri Villas
    [2014] eKLR
  • Diplack Kenya Ltd v William Muthama Kitonyi
    [2018] eKLR
On appeal from
Magistrates' Court (ELRC)
MCELRC No. E1472 of 2020
Jurisdiction invoked
Appellate jurisdiction under Section 79G of the Civil Procedure Act, Chapter 21, Laws of Kenya (appeals from subordinate courts), with a Notice of Motion dated 13th June 2024 seeking enlargement of time

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, "Amayai v Thiga (Employment and Labour Relations Appeal E169 of 2024) [2025] KEELRC 2228 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2228/eng@2025-07-23

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