Endmor Steel Miller Limited v Shikanda (Appeal E053 of 2021) [2023] KEELRC 1018 (KLR)
The bottom line
#A Kenyan employer lost its appeal because it couldn't produce records proving an employee resigned — if you allege resignation, you must prove it with documents.
What this practically means
#Executive summary
#Key legal issues
#Applicability of section 45(3) of the Employment Act to an employee who worked less than 13 months
Section 45(3) stood suspended following the High Court's declaration of unconstitutionality in Samwel G. Momanyi v Attorney General, so the Respondent was entitled to bring an unfair termination claim despite working less than 13 months
The Court noted the High Court decision in Samwel G. Momanyi (supra) declaring section 45(3) unconstitutional. No appeal against that decision was brought to the Court's attention, so the provision's applicability stands suspended. Consequently, the length-of-service limitation did not bar the Respondent's claim.
Voluntary resignation versus constructive/unfair dismissal
The Appellant failed to prove voluntary resignation; the Trial Court was right to find constructive dismissal proved on a balance of probability
The Respondent testified he was verbally terminated without notice. The Appellant's witness relied only on hearsay from unnamed 'witnesses' and produced no documentary evidence of resignation, nor the Mpesa records of payment of dues. The employer's failure to adduce such evidence meant the allegation of resignation could not stand, and the finding of unlawful termination was proper.
Awards of notice pay and unpaid salary
The Trial Magistrate did not err in awarding unpaid salary and salary in lieu of notice since the Appellant failed to produce employment records
Under section 74 of the Employment Act the employer must keep employment records to enable the court to assess the employment relationship. The Appellant failed to provide records of payment or resignation, so the Trial Magistrate was justified in believing the Respondent's evidence and in making the awards of unpaid salary and notice pay.
Legal principles established
#- It is the duty of the employer to keep employment records that would help the court assess the employment relationship; failure to produce such records allows the court to believe the employee's evidence
- He who alleges must prove; the evidential burden lies on the party alleging a fact
Court orders
#- 1.The appeal is found without merit and is dismissed with costs
- On appeal from
- Chief Magistrate's Court, Mavoko
- Mavoko CMEL No. 1 of 2019
- Jurisdiction invoked
- First appeal under the Employment and Labour Relations Court Act (first appellate court re-evaluating evidence of the trial court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Endmor Steel Miller Limited v Shikanda (Appeal E053 of 2021) [2023] KEELRC 1018 (KLR)", Case Analysis (2023). ELRC Appeal (Nairobi) — Appeal against Mavoko CMEL No. 1 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1018/eng@2023-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.