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Court of AppealDismissedCivil Appeal No. 51 of 2015

Isindu v Lavington Security Guards Ltd (Civil Appeal 301 of 2015) [2017] KECA 225 (KLR)

Court of Appeal
3 November 2017
PWP. N. WakiRNR. N. NambuyePKP. O. Kiage
2,711 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that an employee claiming unfair termination must first prove they were actually terminated—not the employer.

What this practically means

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Executive summary

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The appellant worked for the respondent as a security guard from 2001 or 2002 until October 2011. He claimed his employment was verbally terminated without reasons; the respondent said he deserted duty after refusing to attend a refresher course recommended following customer complaints about late reporting. The Employment and Labour Relations Court (Nzioki wa Makau, J) found desertion, dismissed the claim for unfair termination and the monetary dues of Sh. 761,674, but ordered production of NSSF records and a certificate of service. The appellant appealed on ten grounds, principally that the trial court erred in burden-of-proof allocation, failed to enforce employer record-keeping duties under sections 3(5), 18, 20, 21 and 74 of the Employment Act, and failed to determine compliance with sections 41, 43, 45 and 47. The Court of Appeal, applying Rule 29(1)(a) of its Rules and re-evaluating the evidence, held that section 47(5) places on the employee the burden of proving both that termination occurred and that it was unfair; only then does section 43 shift to the employer the burden of justifying the grounds. The appellant's confused testimony, absence of any immediate protest, the five-month delay before a demand letter, and six-month delay before filing suit undermined his claim. Affirming the trial court's credibility findings and the principle of non-interference with findings of fact, the Court dismissed the appeal and made no order as to 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 appellant's employment was unfairly terminated by the respondent or whether he deserted his employment
  2. 2.Whether the trial court erred in placing the burden of proof on the appellant contrary to sections 43, 45 and 47(5) of the Employment Act
  3. 3.Whether the employer was required to produce employment records under section 74 of the Employment Act
  4. 4.Whether the appeal should be allowed and the decision of the Employment and Labour Relations Court set aside

Key legal issues

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01

Whether the appellant was unfairly terminated or deserted his employment

Holding

The appellant failed to prove that his services were terminated; the trial court's finding that he deserted duty was fully supported by the evidence and is affirmed.

Reasoning

The appellant's testimony did not lay the necessary foundation to require the employer's response under section 43. He was confused about the officers who employed and deployed him, made no immediate protest to the respondent or labour officer, sent a demand letter only five months later and filed his claim six months after the alleged termination. The trial court, which saw and heard the respondent's witnesses, was the better judge of their credibility. On a balance of probability, he jumped rather than was pushed.

p. 5
02

Allocation of the burden of proof in unfair termination claims under section 47(5) of the Employment Act

Holding

The employee bears the burden of proving that unfair termination or wrongful dismissal occurred; the employer's burden to justify the grounds arises only after that foundation is laid.

Reasoning

Section 47(5) expressly places the burden of proving unfair termination or wrongful dismissal on the employee, while the burden of justifying the grounds rests on the employer. Section 43(1) requires the employer to prove the reasons for termination, and failure to do so renders the termination unfair, but that obligation is only triggered once the employee has first established that termination actually occurred and was unfair.

p. 4
03

Whether the employer's statutory record-keeping duties under sections 3(5), 18, 20, 21 and 74 of the Employment Act required production of employment records

Holding

The ground was unnecessary to consider because the fact of employment and compliance with employer documentation duties were not disputed matters, were not raised in the pleadings, and parties are bound by their pleadings.

Reasoning

The respondent did not dispute that the appellant was its employee, so no proof of that fact was required. Compliance with the employer's document-keeping obligations was never raised in the pleadings nor made part of the prayers. Parties are bound by their pleadings, so the first broad ground of appeal could be given a wide berth without deciding the employer's statutory obligations.

p. 4
04

The heavy statutory obligations on employers under the Employment Act and their constitutional underpinning

Holding

The Act places heavy legal obligations on employers in summary dismissal and unfair termination cases, and those provisions mirror the constitutional right to fair labour relations under Article 41.

Reasoning

The Act requires the employer to prove reasons for termination (section 43), that the reasons are valid and fair (section 45), and that grounds are justified (section 47(5)), with a mandatory notification and hearing process under section 41 and onerous remedies under section 49. These provisions accord with the preamble's object of declaring fundamental rights of employees and mirror Article 41 of the Constitution. The court nonetheless did not decide this ground because the appellant failed at the threshold of proving termination.

p. 4

Legal principles established

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  • An employee claiming unfair termination bears the burden of proving both that termination occurred and that it was unfair or wrongful; only when that foundation is laid does the employer bear the burden of justifying the grounds for termination
  • An appellate court will not interfere with a trial court's finding of fact unless it is based on no evidence, on a misapprehension of the evidence, or on wrong principles

Court orders

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  1. 1.The appeal is dismissed for lack of merit
  2. 2.The decision of the Employment and Labour Relations Court is affirmed
  3. 3.No order as to the costs of the appeal

The bench

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

PW
majority
RN
majority
PK
majority
On appeal from
Employment and Labour Relations Court
Jurisdiction invoked
Rule 29(1)(a) of the Court of Appeal Rules (retrial/appeal in first appellate jurisdiction)

Relief refused

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The appeal in its entirety, including all ten grounds of appeal

The appellant failed to discharge his evidential burden of proving that his services were terminated and that the termination was unfair or wrongful; on a balance of probability he deserted his employment

p. 5

Costs

We make no order as to the costs of the 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.

On a balance of probability, he was not pushed. He jumped.
p. 5Desertion of employment found on the balance of probability
the appellant in this case had the burden to prove, not only that his services were terminated, but also that the termination was unfair or wrongful.
p. 5Employee's burden of proof under section 47(5)
A Court of Appeal will not normally interfere with a finding of fact by the trial court unless such finding is based on no evidence or on a misapprehension of the evidence or the judge is shown demonstrably to have acted on wrong principles in reaching the finding
p. 4Appellate restraint on findings of fact
On that finding, it only remains for us to dismiss this appeal for lack of merit and afirm the decision of the Employment and Labour Relations Court. We make no order as to the costs of the appeal.
p. 5Final orders - dismissal of appeal and costs

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (19)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Isindu v Lavington Security Guards Ltd (Civil Appeal 301 of 2015) [2017] KECA 225 (KLR)", Case Analysis (2017). Civil Appeal No. 51 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/225/eng@2017-11-03

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