Ciambuba v Neptune Shelters Limited

that the Appellant was privy to the Management agreement that transferred/ absorbed all the employees of Twiga Limited to the Respondent. iv. The learned Magistrate erred in law and fact by failing to evaluate the evidence presented to him that clearly shows that Twiga Limited is a distinct legal person from Mrs. Mary Muriga the wife of the deceased owner of Twiga Limited. The learned Magistrate further failed to appreciate the fact that any acts of Mrs. Mary Muriga after Twiga Limited entering the management agreement with the Respondent amount to acts of an agent of the Respondent. v. The learned Magistrate erred in law and fact by failing to consider that the Appellant worked as a Cleaner at Twiga Limited which upon coming into management agreement with the Respondent she was transferred/referred/ absorbed to worked under the Respondent. The Appellant was supervised and paid her monthly salary of Kshs.17,000/= through her Co-operative bank account by the Respondent. vi. The learned Magistrate erred both in law and fact by reaching a conclusion that there existed no employment relationship between the Appellant and the Respondent despite the overwhelming evidence that the Appellant had worked at Twiga heights properties for 9 years and 2 months while under the management of the Respondent. vii. The learned Magistrate erred in law in proceeding under the wrong principles of Contract law, Law of Agency and Employment and Labour Laws. Therefore, the Appellant qualies to be paid her employment dues that the learned magistrate failed to award. viii. The learned Magistrate erred in law by failing to consider section 74 of the Employment Act on the responsibility of the Employer to provide Employment records. ix. The learned Magistrate erred both in law and fact by failing to make an award in favour of the Appellant for the sum of Kshs.17,000/= on account of one month pay in lieu of notice despite overwhelming evidence that the Appellant was never issued any 28 days' notice of their intention to terminate her services. x. The learned Magistrate erred both in law and fact by failing to make an award in favour of the Appellant for the sum of Kshs. 204,000/= on account of compensation equivalent to 12 months' salary for wrongful termination. The Appellant was a diligent employee who had worked at Twiga heights properties which was under the Respondents management for 9 years and 2 months. It was clear that the Respondent never observed the rules of natural justice prior to terminating the Appellant. xi. The learned Magistrate erred both in law and fact by failing to make an award in favour of the Appellant for the sum of Kshs. 88,269.23/= on account of severance pay despite overwhelming evidence that the Respondent wished to reduce her sta at Twiga heights properties. The learned Magistrate failed to appreciate the fact that the Respondent failed to follow procedures laid down for declaring an employee redundant. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2550/eng@2026-09-22 2

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xii. The learned Magistrate erred both in law and fact by failing to make an award in favour of the Appellant for unremitted NSSF and NHIF deduct. The learned Magistrate failed to consider the fact that the Respondent failed to produce NSSF or NHIF compliance certicates. xiii. The learned Magistrate erred both in law and fact by failing to make an award in favour of the Appellant for the sum of Kshs 51,000/= and Kshs. 3,300/= on account of non-granted leave pay and leave travelling allowance. The learned Magistrate failed to appreciate the fact that the Appellant testimony was never disputed. xiv. The learned Magistrate erred both in law and fact in failing to make an award in favour of the Appellant for the sum of Kshs. 52,401.60/= on account of unpaid public holidays worked despite overwhelming evidence that the Appellant worked during public holidays. The Appellant was in Law entitled to be paid 2 times the normal rate for every public holiday worked. xv. The learned Magistrate erred both in law and fact in failing to make an award in favour of the Appellant for the sum of Kshs. 91,800/= on account of housing allowance despite overwhelming evidence that the Appellant was never provided with a housing unit. The Appellant was in Law entitled to 15% equivalent to his salary as a housing allowance. xvi. The learned Magistrate erred both in law and fact by dismissing the Appellant suit and directing the Appellant to bear the costs of this suit. xvii. The learned Magistrate erred both in law and fact in failing to award a Certicate of Service which the Appellant was in Law entitled. xviii. The learned Magistrate erred in law in failing to appreciate the correct evidence adduced and tendered in Court. xix. The learned Magistrate erred in law and fact by failing to apply the law or the principals of equity. xx. The learned Magistrate misdirected himself in his analysis, evaluation, interpretation and assessment of the entire evidence tendered by the appellant and thus arriving at a wrong, erroneous and unjust conclusion and judgment. xxi. The learned Magistrate erred in law in basing his decision on extraneous factors. xxii. The entire decision is contrary to law and a misapprehension of the law. 3. The Appellant prayed that this Appeal be allowed with costs, the decision of the learned Magistrate be set aside, overturned and or reversed and this Honourable Court be pleased to substitute with an order that the Appellant’s suit in the lower court be allowed as prayed. 4. The Appeal was disposed of by written submissions. Appellant’s Submissions 5. The Appellant’s advocates Magonda Advocates led written submissions dated 7th May, 2025 and on the issue of the nature of the employment relationship between the Appellant and the Respondent https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2550/eng@2026-09-22 3

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counsel submitted that the Appellant worked as a cleaner at Twiga heights properties. The property was managed by the owner Mr. Patrick Muriga through a management company Twiga limited. On 5th June 2013, Twiga limited entered a management agreement with the Respondent. The management agreement appointed the Respondents as exclusive managers with powers to operate, manage, maintain and lease the property for and on behalf of Twiga limited. 6. It was submitted that the Appellant was transferred from Twiga limited and absorbed at Neptune shelters limited. She continued performing her duties at Twiga heights properties. It was the Appellant testimony that it was Mrs. Mary Muriga the wife of Mr. Patrick Muriga who upon the demise of his husband introduced her to the Respondent who was to act as the new estate managers. 7. That the management agreement expressly transferred authority to the Respondent. Article 4 (1)(d) of the agreement expressly granted the Respondent powers and authority to cause the property to be guarded and cleaned at all times when vacant at the cost of the landlord. That the agreement under Article 5(ii) also spelt the duties of the manager which entailed the manager to maintain appropriate books of accounts and records in respect of the property and all transactions entered into in accordance with the provisions of the management. 8. It was submitted that the Appellant was paid her salary of Kshs. 17,000/= by the Respondent. She worked at the property being managed by the Respondent for nine (9) years and two (2) months. She was supervised by the Respondents supervisors and at times by Mrs. Mary Muriga with full knowledge of the Respondent. The Respondent never adduced any other agreement conferring powers to receive instructions outside the ones provided under the management agreement entered on 5th May, 2013. The Respondent witness alleged to have been given instructions by Mrs. Mary Muriga to pay Appellant’s salary. 9. Counsel relied on Section 2 of the Employment Act on denition of an “employer”. That the management agreement transferred all management responsibility of the Twiga heights properties to the Respondent. The Appellant salary payment and supervision was done by the Respondent. The Appellant was employed by a deceased Mr. Patrick the owner of Twiga properties which properties were placed under the management of the Respondent. 10. Counsel relied on Section 2 of the Employment Act on denition of a “contract of service. That the Appellant worked for 9 years and 2 months at the property. She was supervised by the Respondent. The Respondent actions implied the continuation of the initial oral employment contract. The Appellant was absorbed under the earlier employment terms. 11. It was submitted that the evidence adduced showed salary payments by Neptune Shelters Limited. The Respondent witness 1 testied that the Respondent was under instruction from Mrs. Muringa to pay the Appellant. The witness maintained that at no particular time has it ever got into any form of contract with the Appellant to work in the property. A company cannot take instruction from a person who is not a party to an agreement. 12. It was submitted that the Respondent never adduced any instruction or contract from Mrs. Muringa directing them to pay the Appellant. The Respondent never claried the Relationship that Mrs. Mary Muriga had with the Respondent that enabled the company to take instructions from her. That there was a contract of service between the Appellant and the Respondent. The contract between Twiga Limited and the Respondent placed all management responsibility of the Twiga Heights Properties to the Respondent. The Appellant was absorbed and continued with her duties. The Respondent could not allege to have taken instruction outside the contract. Counsel urged this honourable court to nd that the Appellant was an employee of the Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2550/eng@2026-09-22 4

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13. On the issue of whether the dismissal of the Appellant by the Respondent was unfair wrongful and unlawful counsel submitted that on 5th February 2022, the Claimant was informed by Mrs. Mary Muriga that her services will no-longer be required. She was told that due to high property maintenance costs which the Respondent could not be able to manage, the Respondent had decided to terminate her services. 14. It was submitted that the Appellant after being informed of her termination, made several visits to the Respondents oces to get clarity on her job. The same position was conrmed by the Respondent. On 28th February 2022, she was stopped from reporting to work and denied access at Twiga heights properties. Upon her termination, she made several visits to the Respondent’s oces to get information on her employment dues but never received any audience from the Respondent. 15. It was submitted that the Respondent witness testied that it was Mrs. Mary Muriga who terminated the Appellant. The Respondent Witness conrmed that the company never issued any notice to the Appellant neither did the company take any action when they realized that Mrs. Mary Muriga had terminated the Appellant. 16. That the landlord acts were contrary to the provision of the contract. The Respondent was a legal entity separate from the landlord. The landlord whom an interest in a property accrued had to abide by the terms of the management contract. The Respondent by omission or commission accepted the acts of a landlord who was never a party to the contract. The Respondent could not say not to have had knowledge of the termination. The Appellant visited the Respondent’s oces several times prior to being stopped from work. The Respondent failed to take any action or make any communication to the Appellant. The Appellant was never invited back to work after the termination. The Respondent never responded to any of her demands. 17. Counsel relied on Section 43 of the Employment Act on the proof of reason for termination and section 45 of the Employment Act on what amounted to unfair termination. Counsel also relied on section 47(5) of the Employment Act on the respective burden of proof. Counsel relied on the case of James Ondima Kabesa -vs- Trojan International Limited [2017] eKLR on the requirement for both substantive and procedural fairness before termination. 18. It was submitted that the Appellant’s case was that she was terminated due to nancial challenges that the Respondent was undergoing. It was her case that the Respondent wished to reduce her employees at Twiga heights properties so as to reduce the property maintenance costs. No notice of termination was issued. The Respondent never followed any redundancy termination procedures. That the Appellant was irregularly and unlawfully terminated. 19. On the issue of whether the Claimant was entitled to prayers sought counsel relied on Section 107(1) of the Evidence Act on whoever who alleges must prove. That the burden of proof required from the Appellant was on a balance of probability. Counsel invited the court to consider the case of Nicholus Kipkemoi Korir-vs-Hatari Security Guards Limited [2016] eKLR on this assertion. That the Respondent never objected to the Appellant being paid her benets. 20. On the claim of one month pay in lieu of notice counsel submitted that the Appellant was never issued with a notice or paid one month salary in lieu of notice. She was never handed a termination letter. The Respondent witness conrmed that the Appellant was never issued any notice by the Respondent. Reliance was placed on section 35(1) (c) of the Employment Act on the requirement for the notice before termination. The Respondent did not le any documents to rebut the position that no notice was issued to the Claimant. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2550/eng@2026-09-22 5

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21. On the claim for compensation equivalent to 12 months’ salary for non-procedural termination counsel submitted that the Appellant was informed that due to high property maintenance costs her services were to be terminated. The Respondent wanted to reduce costs as such opted to reduce the employees. The Appellant’s termination never followed any procedural fairness. She was never issued with a termination notice. No clearance was done to discharge her from work. No letter of termination was handed. No certicate of service was issued. That all forms of termination must meet both substantive and procedural fairness. Reliance was placed on the case of Daniel Mburu Muriu vs. Hygrotech East Africa Ltd [2021] eKLR. That the Appellant termination was procedurally irregular and unfair. Counsel therefore urged the court to award the appellant compensation for irregular termination. 22. On the claim for severance pay it was submitted that the Appellant was unlawfully and unprocedurally terminated by the Respondent who was undergoing nancial challenges. He failed to follow the correct legal procedure. The Appellant had worked for 9 years and 2 months. 23. It was submitted that the law required an employee declared redundant to be paid by the employer severance pay at the rate of not less than fteen days’ pay for each completed year of service. Counsel urged the court to nd it proper to award severance payment. 24. On the claim for unpaid amount for leave not granted it was submitted that it was the Appellant’s case that she was never granted leave despite asking. She was never compensated for leave not granted. The Respondent witness testied that he was never aware whether the Appellant used to be granted leave. The Respondent never adduced any employment records. That an employee was entitled to twentyone leave days after working for twelve consecutive months or a pro rata leave. Under section 10(3) (a) of the Employment Act, the leave was among the particulars which ought to be included in the employment contract. Counsel relied on section 28 of the Employment Act on leave entitlement. 25. It was submitted that the Appellant was never compensated for leave. No records for leave payments were adduced by the Respondent. That the Appellant was entitled to payment for leave as prayed. On the claim for unpaid Public Holidays it was submitted that the Appellant case was that she used to report to duty on some public holidays. She highlighted some holidays that she worked like on Eid, Madaraka, Labour day and Easter holidays. The Respondent witness testied that he never knew if the Appellant used to work during public holidays. Counsel relied on section 74 of the Employment Act on the duty of employer keeping employment records. The Respondent never led records to rebut this claim. No explanation was given for failing to issue or le pay slips. 26. Counsel relied on the case of Abigael Jepkosgei Yator & Another- vs- China Hanan International Co. Ltd [2018] eKLR, where the court found that where work records are not produced, any claim made by an employee with regard to terms and condition of employment must be taken as the truth. The law provides for payment of an employee who works during a public holiday at a rate twice the normal rate. That the Respondent failed to produce any records to dispute the fact that the Appellant was subjected to work during public holidays. 27. On the claim for housing allowance it was submitted that the Appellant seeks payment of house allowance. She was never issued with an itemized pay slip that could have indicated the various deconsolidated benets. The Labour Institutions Act No. 12 of 2007 provides that an employee is entitled to housing or housing allowance at the rate of 15%. She was entitled to a monthly housing allowance of Kshs. 2,550.00/=. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2550/eng@2026-09-22 6

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28. On the claim for Certicate of service counsel relied on section 51 of the Employment Act which mandated the employer to issue employee with the certicate of service. That no explanation was provided by the Respondent as to why the Appellant was never issued with a certicate of service. Respondents’ Submissions 29. The Respondents’ advocates Kairu Mbuthia Law LLP led written submissions dated 26th August 2025 and counsel relied on the cases of Nzoia Sugar Company Limited -vs- Capital Insurance Brokers Limited Civil Appeal No. 86 of 2009 and Kiruga-vs- Kiruga [1988] KLR 348, on the role of the rst appellate court and when the court will interfere with the decision of the trial court while urging this court to review the evidence on record and the judgment by the trial court. 30. On the issue of whether there existed employment relationship between the Appellant and the Respondent, counsel submitted that the courts have widely pronounced themselves that for a party to succeed in a claim for compensation on unlawful termination, there has to be proved the existence of an employer-employee relationship. Reliance was placed on the case of Samuel Wambugu Ndirangu v 2NK Sacco Limited (2019) eKLR where the court dened the employee and the parameters for the employer-employee relationship. 31. It was submitted that the central interrogation shifted to whether the Appellant established an employer-employee relationship between her and the Respondent. During cross-examination, the Appellant admitted that she was employed by the Landlord of Twiga Towers one Mr. Patrick Muriga. She equally testied to the fact that upon the demise of Mr. Muriga, her employer became Mrs. Mary Muriga who was the wife to the Landlord. In cross-examination, the witness conrmed that she was terminated by Mary Muriga who indicated that her services were never required. Most importantly, the witness expressly stated that her employer was Mary Muriga and not the Respondent. 32. That in her evidence in chief the Appellant averred that she was paid a salary of Kshs. 16,500. However, the payment received from the Respondent as per the statement led in court showed that the only payment received from the Respondent was Kshs.13,000. Equally, in her statement in chief she averred that she started working for the Respondent on 1st January 2013. However, going by the management agreement, the Respondent commenced the management as from the 13th October 2013. The Appellant did not produce other statements demonstrating that during this period, she was paid by the Respondent save for one bullet payment. From this, one can only deduce that she was receiving her salary from somewhere else and simply wanted to tie the Respondent based on a one-time payment which as already stated, was made at the instance of the Landlord. 33. Counsel submitted that the concessions above conrmed the assertion by the Respondent that it was not the employer of the Appellant. The Respondent’s witness asserted that it did not control the duties undertaken by the Appellant and that the Appellant was not answerable to the Respondent. 34. That what the Appellant seems to cling on as to establish a relationship was the payments made through the Respondent’s accounts. This was correctly addressed by the existence of management agreement between the Landlord and the Respondent. The Respondent stated that the payment made to the Appellant was obtained from the rent collected and was at the instance of the Landlord. As a matter of fact the statement submitted to this court was only in respect to one payment made on the 28th February 2022 which was made pursuant to the Landlord’s instructions. That this coupled with admission by the Appellant that her employer was Mary Muriga, she could not turn around and seek compensation from an agent. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2550/eng@2026-09-22 7

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35. Counsel submitted that the Appellant’s conduct amounted to approbation and reprobation which the courts have frowned upon. It would therefore be impractical to acknowledge being employed by the Landlord and at the same time claim compensation for unfair termination from the Respondent who can be considered an employee of the Landlord. Reliance was placed on among another the case of Royal Bank of Canada v. Hirsche Herefords, 2012 ABQB 32 (CanLII) quoted with approval by Tuiyot J in Royal Ngao Holdings Limited v N K Brothers Limited & another (Civil Case 156 of 2019) [2021] KEHC 275 (KLR) (Commercial and Tax) (17 November 2021) (Ruling) on the doctrine of approbation and reprobation. 36. Counsel submitted that there was in existence a management contract dated the 29th day of October 2013 between Twiga Limited and Neptune Shelters limited. In light of the foregoing, article 5 of that agreement provided for the duty of the manager. Further that the Respondent at no particular time had ever got into any form of oral/written contract with the Appellant pertaining any work in the property. Neither had the Respondent ever instructed the Appellant to undertake any work in the property. Counsel relied the denition of a contract of service as per section 2 of the Employment Act. 37. That the Respondent did not dispute the fact that they disbursed some payments to the Appellant, however the Respondent was paying the Appellant solely based on instructions from the Landlord and not by virtue of any oral/written agreement between the Respondent and the Appellant. That in light of the above, there was no employment relationship between the Appellant and the Respondent to warrant the invocation of this court’s jurisdiction. 38. It was submitted that in addition, the Appellant in her statement led in court and during the hearing, expressly acknowledged that it was the owner of Twiga Heights who informed her that her services were no longer needed in the property. The owner of Twiga Heights was the Landlord not in any way connected to the Respondent as a director, shareholder or an agent. This simply pointed to who had employed her as the same individual had the authority to terminate her service. 39. On the issue of whether the Claimant was entitled to the remedies sought counsel submitted that they already submitted that the Appellant had not presented evidence to establish employer-employee relationship. Consequently, all the prayers sought for were untenable. There was no evidence that she was paid monthly to warrant salary in lieu of notice. Equally, she had not itemized the claimed leave days. Neither had she itemized the holidays claimed. 40. It was submitted that the Appellant did not specically state which public holidays she was not paid. The Appellant simply threw the item to the Court. The Appellant had the opportunity to le for production at the pretrial stage but failed to do so. That this was a position adopted by this Honourable Court in ELRC Case Number 2589 of 2016 Edward Ochieng vs Dan Okumu (2022) eKLR. It was further submitted that the claim for severance pay was not tenable since no evidence was led to prove redundancy to warrant such orders. Equally, leave travel allowance was not proved. Determination 41. The court has considered the memorandum of appeal, the record of appeal and submissions led by the both parties herein and as usual notes the principles which guide the court in an appeal from a trial court. The role of the court as the rst appellate court was succinctly stated in the often cited case of Gitobu Imanyara & 2 others v Attorney General [2016] eKLR, among others. 42. The Judgment of the trial court was that the Appellant failed to establish employer-employee relationship between her and the Respondent and the trial court dismissed the claim against the https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2550/eng@2026-09-22 8

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Respondent. The Appellant was aggrieved by the whole judgment and fronted 22 grounds of appeal which this court will condense in to three main issues: a. Whether the trial court erred by nding that the Appellant failed to establish employer-employee relationship between her and the Respondent. b. Whether the trial court erred in nding that the Appellant was not unfairly terminated. c. Whether the trial court erred by not allowing the reliefs sought by the Appellant. Whether the Trial Court Erred by Finding that the Appellant Failed to Establish Employer-Employee Relationship between her and the Respondent. 43. This court is awake to Section 107(1) of the Evidence Act, which provides that: “ Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” 44. This was the position in Anne Wambui Ndiritu vs Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, in which the Court of Appeal held that: “ As a general proposition under section 107(1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the armative of the issue. There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the Court to believe in its existence which is capture 45. The jurisdiction of the Employment and Labour Relations court as far as employment matters are concerned is limited by the existence of an employment relationship as dened in law and the court must always satisfy itself on this account before proceeding any further. 46. This court as was held by the trial court relies on the case of Casmir Nyankuru Nyaberi v Mwakikar Agencies Limited (2016) eKLR the court held that: This court is fully aware that it is the responsibility of an employer to document the employment relationship and in certain respects, the burden of proving or disproving a term of employment shifts to the employer. This does not however release the Claimant from the burden of proving their case. Even in cases where an employment contract is oral in nature, the Claimant must still adduce some evidence whether documentary or viva voce to corroborate their word. More importantly, where an employee believes that the employer has in its possession some documents that would support the case of the employee, that employee is obligated to serve a production notice. 47. The burden of proof in civil cases is on a balance of probability. Lord Denning J. in Miller vs Minister of Pensions (1947) 2 ALL ER 372, discussing that burden of proof held that that degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2550/eng@2026-09-22 9

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48. Further in the case of Transport Workers Union v Euro Petroleum Products & Another [2019] eKLR, the court stated that – The Respondents on their part did not produce any documents to prove that the grievants were neither their employees nor engaged on casual basis. However, the Claimant ought to have at the least established that there was an employment relationship between the grievants and the Respondent(s) before the respondent would be called upon to produce records. 49. The Appellant alleged that she was employed by the owner of Twiga Heights Properties Mr. Muriga as a cleaner initially and she was later absorbed by the Respondent when the management agreement was entered between Twiga Limited and the Respondent. That she was employed in January, 2013 at a monthly salary of Kshs 17,000/= where she was unfairly terminated in February, 2022 after receiving the notice from the landlady Mrs. Muriga. 50. She stated that she was initially employed by Mr. Muriga who passed on and thereafter she was employed by the Mrs. Muriga who passed her to the Respondent herein. The Respondent on the other hand averred that the Claimant was employed by the Landlord Mr. Muriga and not itself. That management agreement was signed on 5th June, 2013 and they found the Claimant in employment with the landlord as a cleaner. That the payments made by the Respondent to the Claimant were under the instructions of the landlady after they collected rent. That it is the landlady who terminated her services. 51. The Respondent alleged that their role was to manage the tenants and such aairs and not the employees in the building. That they did not have control of the Claimant’s work as she was not reporting to them but the landlady who is the person who hired her and sacked her. 52. This court therefore has the obligation of discerning the nature of engagement between the parties as per law. This court is guided by Section 2 which denes contract of service as follows:‘means an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies; 53. Further, Section 2 of the Employment Act denes an employee as:a person employed for wages or a salary and includes an apprentice and indentured learner; 54. In the case of Charles Juma Oleng v M/S Auto Garage Ltd & another [2014] KEELRC 1170 (KLR) the court elaborated the dierence between the contract of service and contract for service as follows: 11. In most cited authorities in this regard from various jurisdictions, several tests have been applied to distinguish between what comprise ‘employment’ as against what constitutes ‘service’ in case of contracts of service as contrasted with contracts for service. They include the following: a. The control test whereby a servant is a person who is subject to the command of the master as to the manner in which he or she shall do the work. b. The integration test in which the worker is subjected to the rules and procedures of the employer rather than personal command. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2550/eng@2026-09-22 10

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The employee is part of the business and his or her work is primarily part of the business. 12. c. The test of economic or business reality which takes into account whether the worker is in business on his or her own account, as an entrepreneur, or works for another person, the employer, who takes the ultimate risk of loss or chance of prot. d. Mutuality of obligation in which the parties make commitments to maintain the employment relationship over a period of time. That a contract of service entails service in return for wages, and, secondly, mutual promises for future performance. The arrangement creates a sense of stability between the parties. The challenge is that where there is absence of mutual promises for stable future performance, the worker thereby ceases to be classied as an employee as may be the case for casual workers. These tests are however not to be seen exclusively by themselves as they only serve as a guide based on the facts of each case. They are however a good guide to the issues as in this case. 55. This court notes that the landlord initially was Mr. Muriga who hired the Appellant as a cleaner as she admitted in the Twiga Heights Properties. The same were managed by Twiga Limited which entered in to management agreement dated 29th October, 2013 on 5th June, 2013. The duties of the manager were as stipulated under article 5. 56. Whereas the Appellant relied on Article 4(1) (d) where the Respondent was to ensure the premises were guarded and cleaned the same had a provision that it would be at a cost of the landlord. This court also noted that Appellant started working before the Respondent was appointed as the management company in January, 2013. 57. There was nothing oral or written that the management company was to take over the landlord’s employees. The management agreement could have indicated as such but since cleaning was at the expense of the Landlord it meant cleaners were to be employed by the landlord and not the management company. The Respondent was only a management company or put otherwise an agent of the landlord to assist in management of the property and the owner of the building remained the landlady after the landlord passed on. It was the owner to give commands/instructions to the management company as her agents and not the other way round. 58. This court in addition noted that since the management company was in charge of collecting rent there was nothing unusual with the owner directing the management company to pay the Appellant. The Appellant was under control and instructions of the landlady and not the Respondent herein the payments as seen from the statement were made for some months in 2021 and 2022 to mean the rest of the period the Appellant was in employment, it was the owner of the building paying for her cleaning services. The Appellant admitted that she was hired by the deceased landlord Mr. Muriga and she was red by the landlady Mrs. Muriga who was the owner of the building. 59. To this court therefore it is clear that the Appellant has not illustrated the employer -employee relationship as per the tests set by the above case where she was not under control of the Respondent as held by the trial court. The trial court did not err by nding that there was no such employment relationship between the parties. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2550/eng@2026-09-22 11

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Whether the Trial Court in Finding that the Appellant was not Unfairly Terminated. 60. This court after nding there existed no employment relationship between the parties proceeds to nd that there was no way the Appellant was unfairly terminated by the Respondent when she was not its employee in the rst place. The trial court did not err by nding that the Appellant was never unfairly terminated by the Respondent. Whether the Trial Court Erred by not Allowing the Reliefs Sought by the Appellant. 61. The trial court after nding there existed no employment relationship between the parties it dismissed the claim against the Respondent and just like in this appeal this court nds that the Appellant having not established the employer-employee relationship she was not entitled to the reliefs sought. 62. In the upshot the Appeal is found unmerited and is hereby dismissed with costs. 63. It is so ordered. DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 22ND DAY OF SEPTEMBER, 2026 ABUODHA NELSON JORUM JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2550/eng@2026-09-22 12

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