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ELRCPartially AllowedMombasa ELRC Appeal (from CMELRC No. E038 of 2024)· [2025] KEELRC 2813 (KLR)

Muia v Ghebreselasie t/a DT Transporters (Appeal E019 of 2025) [2025] KEELRC 2813 (KLR)

Employment and Labour Relations Court
16 October 2025
MMM. Mbarũ
1,733 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is a first appeal against the judgment of the magistrates' court in Mombasa CMELRC No. E038 of 2024, delivered on 23 January 2024, which dismissed the appellant's claims. The appellant, engaged as a heavy commercial truck driver from 23 April 2021 until his resignation on 15 December 2023, claimed notice pay, underpayments, house allowance, unpaid leave, service pay and compensation for constructive dismissal. The respondent denied an employer-employee relationship, asserting he was a casual paid per task. The magistrate found no evidence of continuous employment under section 37 of the Employment Act. On appeal, the ELRC held that under sections 10(6) and (7) the employer bore a duty to produce work records; having failed to do so, the court accepted the appellant's M-Pesa statements and applied Abigael Jepkosgei Yator, Gilbert Kasumali Kithi and Henry Ochido to hold that the appellant, engaged continuously beyond daily periods without a written contract, was protected under section 37 and deemed employed on monthly terms. However, the constructive dismissal claim failed because the employer's removal of the faulty vehicle for repairs was diligent and responsible conduct, not intolerable conditions, so notice pay and compensation were refused. The wage of Ksh. 25,000 exceeded the minimum wage for a general worker under the Wage Orders, defeating the underpayment and house allowance claims. Leave pay of Ksh. 17,944 and service pay of Ksh. 25,000 were awarded. The lower court judgment was reviewed accordingly, with each party bearing its own costs. Delivered at Mombasa on 16 October 2025 by M. Mbarũ, Judge.

Key legal issues

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01

Conversion of casual employment to a term contract

Holding

The appellant's continuous engagement beyond daily/task-based periods converted his employment under section 37 of the Employment Act

Reasoning

Sections 37(1)(a) and (b) deem a casual employee's contract to be one where wages are paid monthly where the employee works continuously for not less than a month or performs work not completable within that period. The appellant worked from April 2021 to December 2023 without a written contract, placing him under section 37 protection.

p. 3
02

Burden of production of employment records

Holding

The employer's failure to produce work records shifts the evidential weight to the employee's account

Reasoning

Under sections 10(6) and (7) of the Employment Act, the employer must file work records when a claim is filed. The respondent produced none, and its assertion of task-based casual payment was unsupported. The court accepted the M-Pesa statements showing varied monthly payments inconsistent with the respondent's account.

p. 3
03

Constructive dismissal

Holding

The claim failed because the employer's action (repairing the faulty vehicle) was reasonable, and the appellant resigned on his own initiative

Reasoning

The appellant resigned on 15 December 2023 after his allocated vehicle was taken to the garage. The court found the employer acted diligently in removing a defective vehicle from the road; this did not amount to intolerable working conditions constituting constructive dismissal. Notice pay and compensation were therefore not due.

p. 4
04

Service pay and leave pay

Holding

Leave pay of Ksh. 17,944 and service pay of Ksh. 25,000 awarded due to absence of work records and statutory remittance records

Reasoning

No work records confirmed annual leave was taken, so leave pay was awarded. There were no records of statutory remittances contrary to sections 17 and 19 of the Act, so service pay under section 35(5) was computed at 15 days' wage per year for two full years at Ksh. 25,000.

p. 4

Legal principles established

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  • Where a casual employee works continuously beyond one day or for periods amounting to the equivalent of not less than one month, the employment is deemed to be on monthly terms under section 37 of the Employment Act
  • An employer has a statutory duty to maintain and produce work records once a claim is filed; in their absence the court must believe the employee
  • Withholding work records confirms unfair labour practices by the employer

Court orders

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  1. 1.Judgment of the lower court reviewed: leave pay awarded at Ksh. 17,944
  2. 2.Service pay awarded at Ksh. 25,000
  3. 3.Each party to bear its own costs

Authorities

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Legislation

  • Employment Actsection 37 (including 37(1)(a),(b))
  • Employment Actsections 10(6) and (7), 9, 10, 18, 35(1)(c), 35(5), 17, 19

Cases cited (4)

  • Rashid Mazuri Ramadhani & 10 others v Doshi & Company (Hardware) Limited & another
    [2018] eKLR
  • Abigael Jepkosgei Yator & another v China Hanan International Co. Ltd
    [2018] KEELRC 2541 (KLR)
  • Gilbert Kasumali Kithi versus Nyali Beach Holiday Resort
    [2015] eKLR
  • Henry Ochido versus NGO Co-ordination Board
    [2015] eKLR
On appeal from
Magistrates' Court (ELRC), Mombasa
Mombasa CMELRC No. E038 of 2024
Jurisdiction invoked
First appeal from the trial court under the Employment Act

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, "Muia v Ghebreselasie t/a DT Transporters (Appeal E019 of 2025) [2025] KEELRC 2813 (KLR)", Case Analysis (2025). Mombasa ELRC Appeal (from CMELRC No. E038 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2813/eng@2025-10-16

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