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ELRCDismissedNot stated in judgment· [2025] KEELRC 2974 (KLR)

Mayaka v Gleem & another (Cause E017 of 2025) [2025] KEELRC 2974 (KLR)

Employment and Labour Relations Court
30 October 2025
1,572 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court in Mombasa dismissed a watchman's claim because he couldn't prove an employment relationship existed, and waited too long to sue anyway.

What this practically means

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Executive summary

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The claimant sued the respondents alleging employment from August 2008 as a watchman, caretaker, gardener and housekeeper at a monthly wage rising from Ksh. 3,000 to Ksh. 20,000, without a written contract or payslip, culminating in summary dismissal on 28 September 2023. He sought 12 months' compensation, notice pay, leave, NHIF and NSSF refunds, service pay, unpaid rest days, public holiday pay, a certificate of service and costs. The respondents denied ever employing him, asserting he was a neighbour engaged casually for tasks and paid per job while running his own flower business adjacent to the premises. They called four witnesses, including a former house help and the respondents' driver. The court framed two issues: whether an employment relationship existed and whether the reliefs should issue. Examining the M-Pesa records, the court found no pattern of monthly wage payments; payments came mainly from Lorraine Adhiambo and were task-based. In cross-examination the claimant admitted working for the respondents' neighbour and being paid per task. Applying Christine Adot Lopeyio, the court held that a contract of service is essential and that the control ingredient of employment was absent, finding no employment relationship and consequently no jurisdiction. In the alternative, claims for leave, rest days and public holidays were continuing injuries time-barred under section 90, the alleged termination being in September 2023 and the suit filed on 19 February 2025. The claim was dismissed with costs to the respondents.

Key legal issues

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01

Whether an employment relationship existed between the claimant and the respondents

Holding

No employment relationship existed; the claimant was engaged on a task-by-task basis and paid at the end of each task, consistent with casual or piece-rate engagement, and the payments lacked any pattern suggesting a monthly wage

Reasoning

The M-Pesa records showed payments mainly from Lorraine Adhiambo, not the respondents, with no pattern of a fixed monthly wage. In cross-examination the claimant admitted being employed by the respondents' neighbour and paid for work done. He ran his own flower business adjacent to the premises and retained Ksh. 20,000 when collecting rent. Applying Christine Adot Lopeyio, a contract of service is necessary and the control ingredient was lacking.

p. 4
02

Whether claims for leave, rest days and public holidays were time-barred

Holding

In the alternative, such claims are continuing injuries that must be addressed within 12 months of cessation under section 90 of the Employment Act; termination allegedly in September 2023 and suit filed 19 February 2025 rendered them time-barred

Reasoning

Relying on Rift Valley Railways v Musonye and German School Society v Ohany, benefits such as housing allowances, overtime and work hours accrue daily, weekly or monthly and constitute continuing injuries under section 90. The alleged termination was in September 2023 and the claim was filed on 19 February 2025, beyond the 12-month window, rendering such claims time-barred.

p. 4

Legal principles established

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  • A contract of service is a necessary ingredient in the definition of 'employer', and the court's jurisdiction over employment disputes is confined to contracts of service
  • Accrued leave, rest days and work during public holidays are continuing injuries which must be pursued within 12 months of cessation under section 90 of the Employment Act
  • A certificate of service can only issue where an employer-employee relationship exists

Court orders

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  1. 1.The claim is dismissed with costs to the respondents
Jurisdiction invoked
Jurisdiction under the Employment Act contingent on existence of a contract of service; court found no employment relationship and hence no jurisdiction to hear and determine the matter

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, "Mayaka v Gleem & another (Cause E017 of 2025) [2025] KEELRC 2974 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2974/eng@2025-10-30

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