Mithika v Manpower Networks Ltd (Environment and Land Case E601 of 2025) [2026] KEMC 809 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Nature of the employment relationship
The Claimant was engaged principally on a piece-rate and work-availability basis, not under a continuous monthly contract.
The signed Letter of Engagement described non-regular, piece-rate employment with each engagement self-contained and dependent on work availability. M-Pesa payments varied in amount, consistent with output-based weekly pay, and the weekly payrolls and daily engagement sheets reflected allocation of work according to operational requirements. NSSF contributions and leave did not displace the express remuneration structure.
Conversion under section 37 of the Employment Act
Conversion into the fixed monthly contract pleaded was not proved; piece-rate employment is not synonymous with casual employment, and actual continuity of work was not demonstrated.
Section 37 protects genuinely casual workers whose engagement continues in substance, but the Claimant was remunerated by output rather than a fixed monthly salary. Even treating the engagement as casual, repeated payments and NSSF remittances showed a recurring relationship but not the precise continuous working days needed to displace the Respondent's evidence of work-availability engagement.
Unfair termination
The Claimant failed to discharge the initial burden under section 47(5) of proving the alleged termination of 2nd September 2024.
No termination letter existed and no evidence from the alleged supervisor, Tata Chemicals or the successor contractor established that a subsisting continuous contract was terminated rather than that further piece-rate engagements ceased. The engagement records ended at the end of August 2024, consistent with the expiry of the outsourcing arrangement. Sections 41, 43 and 45 cannot create a dismissal where the contract pleaded and its termination were not first proved.
Certificate of service
Entitled, as the employment relationship itself was not seriously disputed and section 51 obliges an employer to issue a certificate of service.
Unlike notice pay, service pay and compensation, a certificate of service under section 51 is not dependent on a finding of unfair termination. The evidence established beyond controversy that the Claimant rendered services through the Respondent from 2021 to 2024 and that payroll and statutory records were maintained. The certificate must record the service period without characterising the separation as unfair termination.
Legal principles established
#- Piece-rate employment is legally distinct from casual employment, and the label used by an employer does not determine the nature of the relationship; the court must determine the relationship from the evidence.
- An employee alleging unfair termination bears the initial burden of establishing the fact of termination before the employer is called upon to justify it.
- Statutory contributions and the grant of leave do not, by themselves, transform piece-rate work into fixed monthly employment.
- An employee cannot rely on an NSSF record to prove a sustained employment relationship while disregarding the same membership when claiming service pay.
Court orders
#- 1.The claim for two months' salary in lieu of notice in the sum of KShs. 46,972 is dismissed.
- 2.The claim for service pay in the sum of KShs. 35,229 is dismissed.
- 3.The claim for twelve months' compensation under section 49 of the Employment Act in the sum of KShs. 281,832 is dismissed.
- 4.The Respondent shall issue the Claimant with a certificate of service in accordance with section 51 of the Employment Act within thirty (30) days of this judgment.
- 5.Each party shall bear its own costs.
- Jurisdiction invoked
- Employment and Labour Relations jurisdiction of the magistrates' court (ELRC Cause); Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mithika v Manpower Networks Ltd (Environment and Land Case E601 of 2025) [2026] KEMC 809 (KLR)", Case Analysis (2026). MCELRC Cause No. E601 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/809/eng@2026-08-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.