Cyka Manpower Company Limited v Kemongo & 9 others (Appeal E095 of 2025) [2026] KEELRC 211 (KLR) (29 January 2026) (Judgment)

Cyka Manpower Company Limited v Kemongo & 9 others (Appeal E095 of 2025) [2026] KEELRC 211 (KLR) (29 January 2026) (Judgment) Neutral citation: [2026] KEELRC 211 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Mombasa Appeal E095 of 2025 M Mbarũ, J January 29, 2026 Between Cyka Manpower Company Limited Appellant and Peter Nyamai Kemongo 1st Respondent Joel Mujuka 2nd Respondent Mechack O Odhiambo 3rd Respondent Joram Kioko 4th Respondent Denis Makoha 5th Respondent Alfa Wandera 6th Respondent Tyson Shikunga 7th Respondent Kelvin Abwire 8th Respondent Lawrence Nyngesa 9th Respondent Luke Makori 10th Respondent (Being an appeal from the judgment of Hon. J. B. Kalo delivered on 19 May 2025 in Mombasa CMELRC No. E356 of 2021) Judgment 1.The appeal arises from the judgment delivered on 19 May 2025 in Mombasa CMELRC No. E356 of 2021. The appellant seeks that the judgment be set aside and that the respondent's claims be dismissed with costs. 2.The background to the appeal is a claim filed by the respondents. Their case was that they were all employed by the appellant as operatives, machine operators, and stuffers. The respondents were earning different wages:a.1st respondent was earning Ksh.27,900 per month,b.the 2nd respondent was earning Ksh. 35,000,c.The 3rd respondent was earning ksh. 33,000 per month, andd.4th to 10th respondents were earning Ksh. 21,000 per month. 3.The claim was that the respondents were employed at different points:a.The 1st and 3rd respondents were employed in 2010 and worked until 31 March 2021.b.The 2nd and 8th respondents were employed from 2014 to 31 March 2021.c.The 4th respondent was employed in 2012.d.The 5th, 9th and 10th respondents were employed on 2018.e.The 6th and 7th respondents were employed in 2019. 4.They claimed that their employment was unlawfully terminated on 31 March 2021 without payment of their terminal dues, including leave pay, notice pay, and other emoluments. Each respondent claimed under the following head:a.One month's notice pay,b.12 months' compensation,c.Unlawful deductions for 16 months,d.Leave paye.House allowance at 15%f.Public holidays 5.Only the 2nd respondent claimed service pay at Ksh. 192,591. 6.In reply, the appellant’s case was that the respondents would be employed on a piece-rate basis under a contract to provide manpower services to Tata Magadi Chemicals, which ran from 21 June 2018 to 31 March 2021. There was no permanent employment as alleged; only taken on a needs basis and paid accordingly. The appellant’s contract with the third party in Mombasa expired, and it had no work to offer to the respondents. They were consulted and were aware of the relationship between the appellant and the third party, as well as that the main contract would come to an end. There was no redundancy declaration, but the contracts automatically lapsed by effluxion of time upon termination of the main contract. The appellant informed the Labour Officer of the impending expiry of the contract underlying the respondents’ contract. Pursuant to the contract of employment, the respondent’s claims are not justified for payment in lieu of leave, notice pay, severance pay, damages, or compensation as alleged. 7.The learned magistrate heard the parties and held that the respondent's claims were uncontroverted and awarded them as pleaded, with costs. 8.Aggrieved by the judgment, the appellant filed the appeal on the grounds that the learned magistrate erred in law and fact in expunging the appellant's testimony and documents and holding that the respondents were not casual employees. The finding that the respondents' evidence was uncontroverted was incorrect; therefore, the finding of unfair termination of employment was not justified. 9.Other grounds of appeal are that the awards as prayed lacked reasons and should be set aside, and that the claims be dismissed. 10.The appellant submitted that the trial court erred in expunging the appellant’s testimony and documentary evidence. The documents prepared and filed with the respondent dated 12 April 2023 were not taken into account. Thus, the decision to disregard the response in its entirety was in error as held in Ogwaro v SGA Security Limited [2025] eKLR. The unilateral dismissal of the respondent is contrary to established principles of the law. Every person has the right to a hearing under article 50(1) of [the Constitution](/akn/ke/act/2010/constitution). 11.The finding that the respondents' evidence was uncontroverted was in error because a response was provided. The appellant was denied a fair opportunity to present its case and be heard on the merits. The appellant engaged the respondents based on its availability of work from Tata Chemicals Magadi (Tata Magadi). Upon the lapse of its contract, it had no work to offer the respondents who were hired on a needs basis. It was an error to find that the respondents were not piece-rate employees engaged on a casual basis. In Rapid Kate Services Limited v John Mutisya & 2 others [2018] eKLR, the court held that a casual employee is one whose services are daily and who is paid at the end of the day. 12.The report presented evidence that it engaged the respondents daily with no written contracts or continuity of service. By misclassifying their employment, the finding of unfair termination was an error. 13.The respondents were casual employees. They were paid for the work they had done when the employment relationship terminated. The judgment of the trial court should be set aside, and the blanket order awarding all claims should be dismissed. 14.The respondents submitted that the trial court's judgment is correct and should be affirmed, and that the appeal be dismissed. In evidence, the appellant called no witness. When the appellant's witness was called to the stand, he declined to testify and was not recalled. The appellant closed its case without presenting any evidence. The respondents' claims were not challenged as held in Republic v Resident Magistrate’s Court at Mombasa ex parte Hussein Maalim Sheikh & another [2013] eKLR. 15.The trial court proceeded and delivered judgment on the unchallenged evidence. In Trust Bank Limited v Paramount Universal Bank & 2 others HCCC No. 1243 of 2001, the court held that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact. 16.The respondents submitted that they worked for the appellant for periods exceeding 3 months. They produced their payment statements, NSSF, and bank statements to confirm continuous employment from 2018 to 31 March 2021. Under section 37 of the [Employment Act](/akn/ke/act/2007/11) (the Act), they became employees with rights and benefits as held in Kenyatta University v Maina [2022] eKLR. 17.There was no due process leading to the termination of employment. The principles addressed by the Court of Appeal in Pius Machafu Isindu v Lavington Security Guards Limited [2017] eKLR were not adhered to in Manpower Networks Limited v Samwel Garama Charo ELRCA No. E072 of 2024 held that before termination of employment, the employer has the legal duty to comply with the procedural and substantive justice. The trial court's awards are justified. Determination 18.This is a first appeal. The court is required to review the record, reassess the findings, and render its conclusions. However, keep in mind that the trial court had the opportunity to observe and hear the witnesses. 19.The respondents’ case is that they were employed by the appellant for various periods, and employment ended on 31 March 2021. In support of their claims, they filed various records, including NSSF, payment, and bank statements. 20.Letters of application to the respondents, sent to the bank, confirm that they were employed on contract. Such a letter, issued to Joel Mujuka on 17 November 2016, addressed to Equity Bank, confirms that he was employed on a contract from 1 November 2016 to 31 November 2018. Similar letters issued to him on 16 December 2019, confirming he had a contract of service for one year. 21.Fundamentally, written contracts have been issued to the respondents. The example is a contract dated 1 March 2015 to Joel Omunyonga, ending 31 March 2016. 22.In response, the appellant asserted that there was a contract with Tata Magadi Chemical from 2018 ending on 31 March 2021. They would source respondents on a needs basis for piece-rate work. Such work allocations ended upon the expiry of the main contract with Tata Magadi. 23.The appellant did not file the work records for its employees, save for the agreement with Tata Magadi dated 21 August 2018, the agreement dated 1 December 2019, and the notice ending the contract dated 28 February 2021. The alleged piece rate employment records are not filed. The respondent did not call any evidence before the trial court. The witness called was stood down and was never recalled to give evidence. 24.Section 10(6) and (7) of the [Employment Act](/akn/ke/act/2007/11) (the Act) requires the employer to file work records once a claim is filed with the court. Such duty extends to records kept for up to 5 years.(6)The employer shall keep the written particulars prescribed in subsection (1) for a period of five years after the termination of employment.(7)If in any legal proceedings an employer fails to produce a written contract or the written particulars prescribed in subsection (1), the burden of proving or disproving an alleged term of employment stipulated in the contract shall be on the employer. 25.In the case of Abeid v Portlink Transport Limited (Appeal E001 of 2022) [2024] KEELRC 1400 (KLR), the court emphasized that work records are fodder for employment relations. Without work records, the court must believe the employee's word. See Wellington Maero Omwaya v Hygenic Butchery Trading Limited [2019] KEELRC 1956 (KLR). 26.The respondents provided evidence that they were engaged by the appellant on various dates until 31 March 2021. Without written contracts for the period leading to termination of employment, the employment is not challenged; they become protected under section 37 of the Act. This is based more on the payment records the respondents submitted, which confirm they were not paid daily. Their wages are accumulated over periods beyond a day during which a casual employee is employed. In any case, the appellant admitted employing the respondents on a piece-rate basis, but no records were filed. 27.As cited by the respondents, in Kenyatta University v Maina [2022] KECA 1201 (KLR), the Court of Appeal emphasized that:“… an employer cannot have an employee under the guise of being a casual on the reasoning that it has peak and off-peak sessions. To subject an employee to such a treatment is unfair because being laid off during off peak season does not guarantee the employee permanency and neither can the employee look for employment elsewhere during the off-peak season. …" 28.This position is reiterated in Iteba & 9 others v Cyka Manpower Services Limited [2025] KEELRC 2359 (KLR) and the case of Kaluworks Limited v Kichindo [2025] KEELRC 2624 (KLR). Thus, an employer who fails to keep work records, or who enjoys the labour of an employee but fails to accord them the full rights and benefits under the Act, cannot turn around and claim that these were simply casuals. 29.In this case, the learned magistrate properly assessed the claims and correctly applied the law. The respondents were protected employees under the law, section 37 of the Act. The rights and benefits under the Act are due. 30.The termination of employment devoid of due process under sections 35, 41 and 43 of the Act is unlawful and unfair under section 45 of the Act. 31.In this case, the appellant did not call any evidence to demonstrate that they adhered to procedural or substantive justice in terminating the respondents' employment. Notice pay and compensation are due to each respondent.Notice pay is due under section 35 of the Act based on the last wage. 32.Compensation was awarded as pleaded without the learned magistrate giving reasons as required in the principles now settled in various cases, including Kenya Broadcasting Corporation v Wakio [2019] eKLR and Masawa v Magdak Maternity Hospital Limited [2025] KEELRC 296 (KLR). 33.In this regard, the appellant having failed to file any work records to demonstrate any poor record or misconduct and reasons given to the respondent leading to termination of employment, an award of 3 months gross wage in compensation is hereby found appropriate. The only contract filed by one respondent had lapsed in 2016. 34.For the ends of justice, each is awarded compensation at 3 months' pay. 35.However, the learned magistrate should have assessed every claim before making a global award. In employment and labour relations, each claim must be given context, including the applicable Wage Orders and the law. A global award without justification cannot suffice. 36.The 1st respondent, Peter Nyamai Kemongo, was earning Ksh. 27,900 per month. Such is due in notice pay.Compensation is Ksh. 27, 900 x 3 = Ksh. 83,700. 37.On leave pay, this is a right under section 28 of the Act secured for an employee protected under section 37 of the Act. However, in tabulating annual leave, this should be based on the basic wage for 18 months only. In this case, a total of 33 days is due at Ksh. 30,690 in leave pay. 38.On the claim for house allowance, based on the wage paid at Ksh. 27,900, this is above the legal minimum. House allowance is not due. 39.Regarding the claim for public holiday pay, the respondent did not specify the days he was at work. The Minister gazettes each day and cannot form the basis of a general claim. 40.The claim is awarded the following:a.Notice pay Ksh. 27,900.b.Compensation Ksh. 83,700.c.Leave pay Ksh. 30,690. 41.The 2nd respondent, Joel Mujuka, was earning Ksh. 35,000 per month. The only difference in his case from the other respondents was the claim for service pay. The work records filed by the respondents include payment statements to the NSSF. They were registered and, under section 35(6) of the Act, cannot justify a claim for service pay. 42.The 2nd respondent is awarded the following:a.Notice pay Ksh. 35,000.b.Compensation Ksh. 105,000.c.Leave pay Ksh. 38,500. 43.The 3rd respondent was earning Ksh. 33,000 per month. He is awarded the following:a.Notice pay Ksh. 33,000.b.Compensation Ksh. 99,000.c.Leave pay Ksh. 36,300. 44.The 4th, 5th, 6th, 7th, 8th, 9th, and 10th respondents were earning Ksh. 21,000 per month. Each is awarded the following:a.Notice pay Ksh. 21,000.b.Compensation Ksh. 63,000.c.Leave pay ksh. 23,100. 45.The respondents' claims against the appellant were justified and well-founded. They are entitled to costs for proceedings before the trial occurred in this appeal. 46.Accordingly, the appeal is without merit; judgment in Mombasa CMELRC No.356 of 2021 is reviewed in the following terms:1.1st respondent is awarded the following:a.Notice pay Ksh. 27,900.b.Compensation Ksh. 83,700.c.Leave pay Ksh. 30,690.2.The 2nd respondent is awarded the following:a.Notice pay Ksh. 35,000.b.Compensation Ksh. 105,000.c.Leave pay Ksh. 38,500.3.The 3rd respondent is awarded the following:a.Notice pay Ksh. 33,000.b.Compensation Ksh. 99,000.c.Leave pay Ksh. 36,300.4.The 4th, 5th, 6th, 7th, 8th, 9th, and 10th respondents were earning Ksh. 21,000 per month. Each is awarded the following:a.Notice pay Ksh. 21,000.b.Compensation Ksh. 63,000.c.Leave pay Ksh. 23,100.5.The respondents are awarded costs for the trial court and this appeal. **DELIVERED IN OPEN COURT AT MOMBASA ON THIS 29TH DAY OF JANUARY 2026.****M. MBARŨ****JUDGE**