Mmbukha v Osotsi t/a Reliable Cleaning Services (Appeal E161 of 2023) [2025] KEELRC 2769 (KLR)
The bottom line
#Kenya's Employment Court confirmed that casual workers become permanent employees after three months and can win unfair termination claims using Mpesa records as proof.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court erred in finding that there was no employment relationship between the Appellant and the Respondent
- 2.Whether the Respondent unfairly terminated the Appellant's services
- 3.What remedies the Appellant is entitled to
Key legal issues
#Whether the Appellant proved an employment relationship
The Appellant reasonably proved the existence of an employment relationship on a balance of probability; the trial court erred in finding otherwise
The court noted the Mpesa messages sent almost once every year for six years corresponding to the alleged salary, accepted that cash payments are almost impossible to prove, found it unreasonable to expect serving co-workers to testify against their employer, and held the casual engagement converted to a term contract under section 37 of the Employment Act.
Whether the termination was unfair
The termination was unfair; the Respondent neither showed a valid reason nor followed fair procedure under sections 41, 43 and 45
Having established the employment relationship, the Appellant was entitled to protections under the Employment Act. Under section 47(5) the burden shifted to the Respondent to justify the grounds of termination, which he failed to do, having denied the relationship and adduced no justification.
Remedies for unfair termination and accrued entitlements
Eight months' salary as compensation computed at Kshs 13,752.00 per month, plus notice pay, salary arrears, underpayments, unpaid leave, service pay and a certificate of service
Relying on section 49 with regard to section 49(4) considerations of six years' service and the nature of termination, the court awarded eight months' salary based on the salary the Appellant ought to have received without underpayment, and granted other statutory entitlements under sections 28, 35, 36 and 51.
Legal principles established
#- The burden of proving an employment relationship lies on the claimant on a balance of probability, but where an employee believes documents in the employer's possession would support the case, the employee is obligated to serve a production notice
- Casual employment converts to a term contract where the casual employee works for a continuous period amounting to the equivalent of not less than one month or performs work expected to take three months or more
- A termination not aligned to the Employment Act's requirements of notice, valid reason and fair procedure is unfair under section 45
Court orders
#- 1.Appeal allowed with costs to the Appellant
- 2.One month's salary in lieu of notice - Kshs 13,752/=
- 3.Eight months' salary as compensation for unfair termination - Kshs 110,016/=
- 4.Salary for months of June and July 2020 - Kshs 27,144/=
- 5.Underpayments - Kshs 186,159/=
- 6.Unpaid leave - Kshs 47,503/=
- 7.Service Pay - Kshs 40,717/=
- 8.Total award of Kshs 425,291/=
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates Court (ELRC) - Honourable Lesootia Saitabau, PM
- MCELRC No. E619 of 2020
- Jurisdiction invoked
- Appellate jurisdiction over the trial court's judgment in MCELRC No. E619 of 2020; Employment Act (Cap 226) and Employment and Labour Relations Court Act
Relief refused
#No relief expressly refused; all principal prayers allowed
The court found the appeal merited and allowed all claimed heads
Costs
Appeal allowed with costs to the Appellant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This court therefore finds and holds that the Appellant proved at the trial reasonably proved the existence of employment relationship between herself and the Respondent.
The Respondent's assertion that the Appellant was hired on casual basis was also defeated by the law which under section 37 converts a casual employee to term employee after working for a continuous period of 3 months.
In the upshot the Appeal is found merited and is hereby allowed with costs to the Appellant
Total Kshs 425,291/=
It is so ordered.
Issues in the judgment
#Order (ii) reads 'Eighty Month's salary' but the computation (Kshs 110,016 = 8 x 13,752) and the body of the judgment confirm eight months; the printed figure of 'Eighty' is an error
Counsel's submissions state unpaid leave at Kshs 57,004.08 but the final order awards Kshs 47,503; discrepancy not explained in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mmbukha v Osotsi t/a Reliable Cleaning Services (Appeal E161 of 2023) [2025] KEELRC 2769 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 31st August 2023 (arising from MCELRC No. E619 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2769/eng@2025-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.