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Case Brief · caselaw.co.ke
ELRCDismissedELRC Appeal No. E011 of 2025

William Wanyonyi Munialo v Maliwa Security Services Ltd, Maliwa Enterprises & Vincent Masinde

Employment and Labour Relations Court of Kenya
21 September 2026
2,843 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a security guard's unfair termination appeal because he could not prove he was ever employed.

What this practically means

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Executive summary

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The Appellant appealed to the Employment and Labour Relations Court at Kakamega against the dismissal by the Butali Magistrates' Court of his claim that he was employed by the Respondents as a security guard at Simba Quarry from 1st January 2021 to 15th May 2022 at Kshs5,000 per month and was unfairly terminated without notice or hearing. He sought declarations that the termination was unlawful, salary for May 2022, notice pay, compensation for unfair termination, underpayments and costs. The Respondents denied ever employing him, contending the 1st Respondent was incorporated on 5th January 2021 and commenced security operations only in 2022, and that no employment records existed because he was never engaged. The appeal was canvassed by written submissions. The Appellant argued the trial court erred on the burden of proof, relying on Sections 2, 9, 10, 20, 36-47 and 74 of the Employment Act and authorities on shifting the evidential burden. The Respondents maintained the overall burden remained on the Appellant, citing Sections 107 and 109 of the Evidence Act and Kirugi v Kabiya. Justice David Nderitu framed two substantive issues: whether the trial magistrate erred in finding no employment relationship and hence no unlawful termination, and the orders and costs on disposal. The court held that the M-Pesa statement showed no payments from any Respondent, the attendance list bore no Respondent's name, signature, letterhead or stamp and improbably recorded work on 31st April 2021, and no co-worker was called. The burden of proving the employment relationship never shifted to the Respondents. The court upheld the trial court's finding, dismissed the appeal in its entirety, and ordered each party to meet its own costs.

Questions the Court framed

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

  1. 1.Whether the learned trial magistrate erred in law and fact in finding and holding that the Appellant was at no time or period an employee of the Respondents and hence there was no unlawful termination
  2. 2.What orders should this court make in the disposal of this appeal
  3. 3.Costs

Key legal issues

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01

Whether the Appellant proved an employment relationship with the Respondents

Holding

The Appellant failed to prove an employment relationship; the M-Pesa statement showed no payments from the Respondents and the attendance list bore no identifying marks of any Respondent

Reasoning

The court examined the documentary evidence: the M-Pesa statement for 1st January 2022 to 7th September 2023 showed no payment from any Respondent, and the pleaded first payment of Kshs4900 on 8th January 2022 was unsupported. The attendance list contained the Appellant's name but no Respondent's name, signature, letterhead or stamp, and improbably recorded work on 31st April 2021. No co-worker was called to corroborate employment.

p. 12
02

Whether the burden of proving employment terms shifts to the employer

Holding

The burden of proving the employment relationship and unfair termination remained with the Appellant throughout and never shifted to the Respondents

Reasoning

Applying Section 47(5) of the Employment Act, the court held that the employee bears the burden of proving unfair termination. Since the Appellant never established a prima facie employment relationship, the evidential burden could not shift to the employer to disprove the terms of employment or produce records.

p. 12
03

Whether this Court should interfere with the trial court's judgment

Holding

The trial court correctly found no employment relationship; there was no reason to interfere with its judgment

Reasoning

The court upheld the trial court's finding that the Appellant failed to prove an employment relationship with the Respondents or any of them, found no misapprehension of the evidence, and dismissed the appeal in its entirety with no order as to costs, each party bearing its own costs.

p. 13

Legal principles established

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  • The burden of proving the existence of an employment relationship and unfair termination rests on the employee and does not shift to the employer unless the employee first establishes a prima facie case
  • Section 47(5) of the Employment Act places the burden of proving unfair termination on the employee and the burden of justifying the grounds for termination on the employer

Court orders

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  1. 1.The appeal fails in its entirety and is hereby dismissed
  2. 2.Each party shall meet own costs in this appeal

The bench

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

majority

Wrote the judgment

On appeal from
Butali Magistrates' Court
ELRC No. E020 of 2023
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's employment claim (Employment and Labour Relations Court Act; appeal from Butali Magistrates' Court ELRC No. E020 of 2023)

Relief refused

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Allowance of the appeal and substitution of the lower court's judgment with a finding allowing the Appellant's claim, with costs of both trial and appeal

The Appellant failed to prove an employment relationship or unfair termination on a balance of probabilities; the burden of proof never shifted to the Respondents

p. 12

Costs

Each party shall meet own costs in this appeal.

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.

The burden of proof of the existence of an employment relationship as a basis for the claim for unfair termination was always with the Appellant.
p. 12burden of proof in employment claims
At no point did the burden of proof that the Appellant was an employee of the Respondents shift to the Respondents.
p. 12no shift of burden absent prima facie proof of employment
The court upholds the finding of the trial court that the Appellant failed to prove an employment relationship with the Respondents or any of them.
p. 13upholding the trial court's finding
a) The appeal fails in its entirety and is hereby dismissed. b) Each party shall meet own costs in this appeal.
p. 13final orders and costs

Issues in the judgment

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minor

Conflicting dates for the lower court judgment

minor

Submissions dated 2026 post-date the appeal filed in 2025, suggesting typographical errors

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, "William Wanyonyi Munialo v Maliwa Security Services Ltd, Maliwa Enterprises & Vincent Masinde", Case Analysis (2026). ELRC Appeal No. E011 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2519/eng@2026-09-21

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