Fineline Industries Limited v Kanyima (Appeal E087 of 2021) [2024] KEELRC 414 (KLR)
The bottom line
#A Kenyan employer who fires an absent worker without contacting them or issuing a show-cause notice must pay damages for unfair termination.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the termination of the Respondent was unlawful
- 2.Whether the termination of the Respondent was fair
- 3.Whether the trial Court was bound by the decision of the sub-county labour office
- 4.Whether the trial court placed a heavy burden on the Appellant to disprove the allegations raised by the Respondent
- 5.Whether the award of one month's salary in lieu of notice and eight months' gross salary as damages should be disturbed on appeal
Key legal issues
#Whether the trial court misapplied the burden and standard of proof
The appeal court found no departure from the balance-of-probabilities standard; section 43(1) of the Employment Act places the burden of proving reasons for termination on the employer
The Appellant complained that the magistrate imposed the burden of proof on it contrary to section 47(5) of the Employment Act. The court on appeal perused the record and found no application of a beyond-reasonable-doubt standard. Under section 43(1), an employer must prove reasons for termination, failing which termination is deemed unfair. Holding the employer to that standard was proper, and the ground collapsed.
Whether the award of one month's salary in lieu of notice and eight months' gross salary as damages should be disturbed
The award was neither inordinately high nor unsupported by evidence, and the employer's failure to contact the absconding employee or issue a notice to show cause justified the trial court's findings
The court found the magistrate entitled to hold the employer to the standard applied. The employer opted to write to the Labour Office rather than contact the employee, which did not dislodge doubts about its motive, and no notice to show cause was served. The award therefore stood as a reasonable exercise of discretion under section 49 of the Employment Act.
Whether the trial Court was bound by the decision and Certificate of Payment of the Sub-County Labour Office
The appeal was dismissed without disturbing the trial court's treatment of the labour office's findings; the employer's reliance on the conciliation process did not displace the finding of unfair termination
The Appellant argued that the labour officer's determination and Certificate of Payment bound the parties and that the trial court erred in disregarding them. The court did not accept this submission, finding instead that the employer's conduct — failing to contact the employee and failing to serve a notice to show cause — was insufficient to dislodge doubts about the termination, and dismissed the appeal.
Legal principles established
#- In any claim arising out of termination of a contract, the employer bears the burden to prove the reason or reasons for the termination, failing which the termination is deemed unfair
- An employer who alleges that an employee absconded must take steps to establish the employee's whereabouts; merely writing to the Labour Office instead of contacting the employee is insufficient
Court orders
#- 1.The Appeal is dismissed with costs to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Nairobi Milimani Commercial Courts (Magistrates' Court)
- CMEL No 1245 of 2019 - Kennedy Amimo Kanyima v Fineline Industries Limited
- Jurisdiction invoked
- Appeal from the magistrates' court in an employment cause under the Employment Act (court hearing appeals from subordinate courts in employment matters)
Relief refused
#Setting aside of the Judgment/Award and Decree of the trial Magistrate (including the one month's salary in lieu of notice and eight months' compensation)
The court found no merit in the appeal; the trial court did not apply the wrong standard of proof and the award was neither inordinately high nor unsupported by evidence
Costs of the Appeal and the Lower Court proceedings awarded to the Appellant with interest
The appeal was dismissed with costs to the Respondent
Costs
The appeal was dismissed with costs to the Respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In any claim arising out of termination of a contract, the employer shall be required to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of section 45.
I have not discerned any departure from the evidentiary threshold of proof on a balance of probabilities. The Learned Magistrate did not apply the standard of proof beyond reasonable doubt.
The Appellant chose not to contact the Respondent instead opting to write to the Labour Ofice. This was not suficient to dislodge any doubts regarding the motive for the failure to look for the Respondent when it noted he was absent from work.
The foregoing is suficient to demonstrate that I do not find any merit in the Appellant’s appeal and proceed to hereby dismiss the same with costs to the Respondent. It is so ordered.
Issues in the judgment
#The judgment frames the parties' roles inconsistently: the Appellant's submissions refer to 'the Respondent's claim against it' and describe the claimant as 'the Respondent', while the memorandum of appeal uses 'Claimant' for the same person; the court's disposition identifies the Respondent as recipient of costs
No neutral citation appears in the judgment; the case number field identifies only the lower court cause number
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fineline Industries Limited v Kanyima (Appeal E087 of 2021) [2024] KEELRC 414 (KLR)", Case Analysis (2024). Nairobi Milimani Commercial Courts CMEL No 1245 of 2019 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/414/eng@2024-02-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.