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ELRCDismissedELRC Appeal (Nairobi) — Appeal against Mavoko CMEL No. 1 of 2019· [2023] KEELRC 1018 (KLR)

Endmor Steel Miller Limited v Shikanda (Appeal E053 of 2021) [2023] KEELRC 1018 (KLR)

Employment and Labour Relations Court
28 April 2023
2,388 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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Endmor Steel Millers Limited appealed against the judgment of Hon. H. Onkwani (PM) in Mavoko CMEL No. 1 of 2019, in which Abel Shikanda Mutsoli had successfully claimed unfair termination and unpaid terminal dues. The appeal raised three consolidated issues: the applicability of section 45(3) of the Employment Act to an employee who had worked less than thirteen months, whether the Respondent voluntarily resigned or was constructively dismissed, and the awards of notice pay and unpaid salary. Relying on the High Court decision in Samwel G. Momanyi v Attorney General, the Court held that section 45(3), having been declared unconstitutional and no appeal having been brought to its attention, stood suspended, so the Respondent was entitled to bring his unfair termination claim. On the merits, the Court found that although the Appellant alleged voluntary resignation, its witness relied on hearsay and produced no documentary evidence of the resignation or of the Mpesa payment of final dues. Applying the principle that he who alleges must prove, and section 74 of the Employment Act which obliges employers to keep employment records, the Court held the Appellant failed to discharge its evidential burden. It affirmed the Trial Court's findings that the Respondent proved constructive dismissal on a balance of probability and that the awards of unpaid salary and salary in lieu of notice were proper. The appeal was found to lack merit and was dismissed with costs.

Key legal issues

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01

Applicability of section 45(3) of the Employment Act to an employee who worked less than 13 months

Holding

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

Reasoning

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.

p. 5
02

Voluntary resignation versus constructive/unfair dismissal

Holding

The Appellant failed to prove voluntary resignation; the Trial Court was right to find constructive dismissal proved on a balance of probability

Reasoning

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.

p. 5
03

Awards of notice pay and unpaid salary

Holding

The Trial Magistrate did not err in awarding unpaid salary and salary in lieu of notice since the Appellant failed to produce employment records

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The appeal is found without merit and is dismissed with costs

Authorities

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Legislation

  • Employment Actsection 45(3)
  • Employment Actsection 45(2)
  • Employment Actsection 41
  • Employment Actsection 74
  • Evidence Actsections 107-109
  • Regulation of Wages (General) (Amendment) Order2017

Cases cited (8)

  • Selle vs Associated Motor Boat Company Limited
    [1968] E.A 123
  • Herbert Wafula Waswa v Kenya Wildlife Services
    [2020] eKLR
  • Milton M Isanya v Aga Khan Hospital Kisumu
    [2017] eKLR
  • Samwel G. Momanyi v Attorney General & another
    [2012] eKLR
  • Law Society of Kenya v Kenya Revenue Authority & another
    [2017] eKLR
  • Ol Pejeta Ranching Limited v David Wanjau Muhoro
    [2017] eKLR
  • Patrick Lumumba Kimuyu v Prime Fuels (K) Limited
    [2018] eKLR
  • Jennifer Nyambura Kamau v Humphrey Mbaka Nandi NYR CA Civil Appeal No. 342 of 2010
    [2013] eKLR
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

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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, "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.