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ELRCDismissedAppeal from MCELRC E1105/2021 - memorandum of appeal dated 9th October 2023· [2025] KEELRC 2509 (KLR)

Rabdiya Construction Ltd v Abukuse (Appeal E196 of 2023) [2025] KEELRC 2509 (KLR)

Employment and Labour Relations Court
18 September 2025
6,950 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court upheld an award against a construction company that denied employing a worker whose own delivery notes proved the relationship.

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 (J.W. Keli, J) against the judgment of Hon. S.N. Muchungi (SRM) delivered on 8th September 2023 in MCELRC E1105/2021, which partially allowed the respondent's claim for unfair termination and awarded Kshs. 179,200/- comprising one month's notice pay, leave pay for 2018 and 2019, and six months' compensation. The appellant contended the respondent was never its employee but worked for a subcontractor, Eliud Oyido Odero, and that the trial court erred on evidence and reliefs. The court, guided by Selle v Associated Motor Boat Co., re-evaluated the evidence and upheld the trial court's findings. The delivery note of 24th November 2011 predates the subcontract effective September 2013, and the 2017 delivery note post-dates its April 2016 completion, so the subcontractor defence could not stand; the authenticity of the delivery notes was never challenged. The respondent's continuous employment converted his casual engagement into a term contract under section 37 of the Employment Act. On unfair termination, the claimant discharged his burden under section 47(5); the appellant, maintaining it was not the employer, offered no justification, so the termination failed the substantive and procedural fairness tests under sections 43, 45(2) and 41. The reliefs awarded were upheld: notice pay under sections 35 and 36, leave pay (the employer being custodian of records under section 74), and six months' compensation as a proper exercise of discretion under section 49(4). Housing allowance and gratuity were correctly denied. The appeal was dismissed with costs to the respondent and the trial judgment and decree upheld.

Key legal issues

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01

Existence of employer-employee relationship between respondent and appellant as opposed to the subcontractor

Holding

The finding of employment by the appellant was upheld: the delivery note of 24th November 2011 predates the subcontract (effective September 2013), and the 2017 delivery note post-dates the subcontract's April 2016 completion, defeating the subcontractor defence.

Reasoning

Re-evaluating the evidence, the court found the subcontract agreement could not explain the claimant's presence on site in 2011 and 2017. The authenticity of the delivery notes was never questioned at trial. RW1's evidence that delivery notes are mere purchase orders did not displace the documentary link bearing the appellant's letterhead and the claimant's name.

p. 10
02

Whether termination was unfair and unlawful

Holding

The finding of unfair termination was upheld; the claimant discharged his burden under section 47(5) and the appellant failed to justify the termination under sections 43 and 45(2).

Reasoning

The claimant pleaded and testified that his services were ended in January 2020 without notice or reason. The burden then shifted to the employer to justify the grounds for termination. Because the appellant maintained it was not the employer, it offered no justification, so the termination failed both the substantive and procedural fairness tests.

p. 11
03

Whether the trial court erred in the award of reliefs

Holding

All awarded reliefs (notice pay, two years' leave pay, six months' compensation) were upheld; the declined heads (housing allowance, gratuity) were correctly denied.

Reasoning

Notice pay was due under sections 35 and 36; leave records are the employer's responsibility under section 74, and no contrary evidence was produced; housing allowance is included in daily wages under the minimum wages orders; gratuity is barred for NSSF members under section 35(6); the six months' compensation was a proper exercise of discretion under section 49(4).

p. 11

Legal principles established

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  • The burden of proving an employment relationship rests on the claimant, though the employer bears the duty of documenting employment and may have the burden of proving or disproving a term of employment shifted to it where it fails to produce a written contract.
  • Under section 37 of the Employment Act, casual employment converts to a term contract where the employee works continuously for the equivalent of one month or more.
  • Where the employer offers no explanation for the termination, the burden of justifying grounds having passed to it, the termination is unfair for lack of valid reason and procedural fairness.
  • An appellate court will not interfere with an award of compensation made in the exercise of judicial discretion unless the discretion was exercised wrongly.

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent
  2. 2.The Judgment and Decree of the Hon. S.N. Muchungi (SRM) delivered on 8th September, 2023 in MCELRC E1105/2021 is upheld

Authorities

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Legislation

  • Employment ActSection 2
  • Employment ActSection 10(7)
  • Employment ActSection 35
  • Employment ActSection 35(6)
  • Employment ActSection 36
  • Employment ActSection 37
  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 45(2)
  • Employment ActSection 47(5)
  • Employment ActSection 49(4)
  • Employment ActSection 74
  • Evidence ActSections 107, 108, 109
  • Civil Procedure RulesOrder 2 rule 4

Cases cited (13)

  • Selle v Associated Motor Boat Co.
    [1968] EA 123
  • Mbogo v Shah
    [1968] EA 93
  • Linus Songwa Musamali v Bamco Construction Company
    [2020] eKLR
  • Stephen Edwin Okoth v Attorney General
    [2019] eKLR
  • Casmur Nyankuru Nyaberi v Mwakikar Agencies Limited
    (2016) eKLR
  • Zarika Adoyo Obondo v Tai Shunjun & another
    [2020] eKLR
  • Kenya Union of Commercial Food and Allied Workers v Mwana Black Smith Limited
    [2013] eKLR
  • Mary Mmbone Mbayi v Chandubhai Patel & Another
    (Industrial Cause No. 761 of 2011)
  • Kaiga v Das
    [2023] KEELRC 2194 (KLR)
  • Joseph Munene Murage v Salome Ndung’u
    (2019)
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Edward Sargent v Chhotabhai Jhaverbhat Patel
    [1949] 16 EACA 63
  • Haman Singh & Others v Mistri
    [1971] EA 122
On appeal from
Magistrates' Court (ELRC)
MCELRC E1105/2021
Jurisdiction invoked
First appellate jurisdiction over appeals from subordinate courts in employment matters (Employment and Labour Relations Court Act); appeal against S.N. Muchungi (SRM) judgment

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, "Rabdiya Construction Ltd v Abukuse (Appeal E196 of 2023) [2025] KEELRC 2509 (KLR)", Case Analysis (2025). Appeal from MCELRC E1105/2021 - memorandum of appeal dated 9th October 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2509/eng@2025-09-18

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