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ELRCDismissedMemorandum of Appeal dated 4th April, 2023

Mwangi v All Time Security Ltd (Appeal E044 of 2023) [2025] KEELRC 521 (KLR)

Employment and Labour Relations Court
24 February 2025
2,654 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A worker claiming unfair dismissal in Kenya must prove an employment relationship existed, or the court cannot award any compensation.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Nairobi against the judgment of Honourable Lucy Njora (Mrs) C.M delivered on 8th March 2023 in CMEL E1207 of 2020, in which the Appellant's claim for damages and terminal dues following an alleged oral termination on 14th August 2019 was dismissed for failure to prove employment. The appeal was disposed of by written submissions. The Appellant, who said he worked as a night guard from February 2014, relied on a bank statement described as a Salary/Remittance account showing two cash deposits in July 2019, and on the Respondent's non-response to a sub-county labour officer's letter. The Respondent denied the employment relationship in its defence and called no witness. Framing two issues - whether the trial court erred in not finding an employment relationship, and entitlement to reliefs - the court applied the Peters v Sunday Post standard of review on first appeal, section 107(1) of the Evidence Act and section 47(5) of the Employment Act. It held that the deposits were cash deposits not linked to the Respondent, that the Appellant produced no fuller statements for the five years claimed, and that the burden of proving both employment and unfair termination lies exclusively on the employee, unrelieved by the employer's failure to rebut. The court affirmed the trial court's finding, declined jurisdiction over the consequential reliefs, and dismissed the appeal with costs to the Respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial court erred in not finding that there was an employment relationship between the Appellant and the Respondent.
  2. 2.Whether the Appellant was entitled to reliefs sought.

Key legal issues

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01

Whether an employment relationship between the Appellant and the Respondent was proved

Holding

The Appellant failed to prove the employment relationship on a balance of probabilities; the trial court's finding was upheld.

Reasoning

The bank statement, though described as a Salary/Remittance account, showed only two cash deposits in July 2019 with no link to the Respondent as depositor, and the Appellant produced no fuller statements for the five years he claimed to have worked. The labour office complaint could not substitute proof of employment. Under section 47(5) of the Employment Act the burden of establishing employment and unfair termination lies exclusively on the employee, and the employer's failure to call witnesses does not shift that burden.

p. 5
02

Entitlement to reliefs (damages, notice pay, underpayment, unpaid leave, compensation)

Holding

No reliefs could be granted because the foundational employment relationship was not established.

Reasoning

Once the primary finding on employment failed, the court held it lacked jurisdiction to consider consequential reliefs. The grounds of appeal on unfair termination and assessment of damages were therefore incapable of success independently of proof of employment. The appeal as a whole was dismissed with costs to the Respondent.

p. 6
03

Standard of review on first appeal

Holding

The first appellate court must reconsider and re-evaluate the evidence and draw its own conclusions while allowing for the trial court's advantage of seeing witnesses.

Reasoning

The court adopted the classic Peters v Sunday Post framework: it re-evaluated the documentary evidence itself rather than merely reviewing the trial court's reasoning, and reached the same conclusion on the sufficiency of the proof of employment.

p. 4

Legal principles established

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  • The burden is exclusively on the employee to prove the employment relationship and unfair termination under section 47(5) of the Employment Act, and the failure of the employer to call evidence in rebuttal does not discharge that burden.
  • The jurisdiction of the Employment and Labour Relations Court in employment matters is conditioned on the existence of an employment relationship, which the court must first satisfy itself of.
  • A claimant relying on an oral employment contract must adduce corroborative evidence, and where the employer holds supporting documents, the employee must serve a production notice.

Court orders

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  1. 1.The appeal is dismissed for lack of merit
  2. 2.Costs of the appeal to the Respondent
  3. 3.The finding of the trial court that the appellant did not sufficiently prove an employer-employee relationship is upheld

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

On appeal from
Chief Magistrate's Court (employment and labour relations)
CMEL E1207 of 2020
Jurisdiction invoked
First appellate jurisdiction over the trial magistrate's judgment in an employment claim under the Employment Act

Relief refused

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Declaration that the Appellant was an employee of the Respondent and that his dismissal was wrong, unfair and unlawful

The Appellant failed to prove the existence of an employment relationship on a balance of probabilities, and without it the court has no jurisdiction over the reliefs.

p. 6

Damages, notice pay, underpayment, unpaid leave and other terminal dues as pleaded in CMEL E1207 of 2020

Follows from failure to establish employment relationship.

p. 6

Costs

The appeal was dismissed with costs to the Respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In conclusion the Appeal fails for lack of merit and the same is hereby dismissed with costs.
p. 6Disposition
This Court finds that on a balance of probabilities the Appellant failed to prove the existence of an employer-employee relationship with the Respondent.
p. 5Burden of proof - employment relationship
The burden is exclusive to the employee and it matters not that the employer did no call any evidence in rebuttal to the allegation if the employee does not on his part suficiently discharge this burden.
p. 5Section 47(5) Employment Act
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 defined in law and the Court must always satisfy itself on this account before proceeding any further.
p. 5Jurisdiction of the ELRC

Issues in the judgment

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minor

Typographical error in the date of the labour officer's letter

minor

Internal inconsistency in the description of the bank statement period - counsel described it as covering 18th June, 2019 to 16th July, 2019 while the court found it covered 21st July, 2014 to 31st July, 2019

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, "Mwangi v All Time Security Ltd (Appeal E044 of 2023) [2025] KEELRC 521 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 4th April, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/521/eng@2025-02-24

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