Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in the judgment (Memorandum of Appeal dated 31st October 2023)

Ayuma v Omunga (Appeal E220 of 2023) [2025] KEELRC 673 (KLR)

Employment and Labour Relations Court
28 February 2025
3,507 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

#

The Employment Court confirmed that in Kenya, an employee claiming unfair termination must prove it first—demanding and collecting final dues can count as resigning yourself.

What this practically means

#

Executive summary

#
This is a first appeal to the Employment and Labour Relations Court, Nairobi, against the judgment of Hon. H. M. Ng'ang'a in CMELRC No. 160 of 2019 delivered on 9th October 2023, dismissing the Claimant's claim with costs. The Appellant, a house help employed for six to seven years, claimed she was terminated without notice on 3rd October 2018 after being refused a loan for school fees and replaced. The Respondent contended that the Appellant absconded duties, used abusive language, and repudiated her own contract by demanding her dues. The appeal was disposed of by written submissions. The court restated the first appellate duty, drawn from Peters v Sunday Post Limited [1958] EA 424, to re-evaluate the evidence and reach its own conclusions while allowing for the trial court's advantage of seeing the witnesses. On the burden of proof, the court applied section 47(5) of the Employment Act and followed the Court of Appeal's decision in Pius Machafu Isindu v Lavington Security Guards Limited, holding that the Appellant failed to lay a prima facie foundation of unfair termination. Her taking of an unauthorised off day amounted to absconding, and her demand for dues, which she reversed upon receipt, evidenced repudiation of her own contract. The redundancy ground failed because the parties continued working after the April 2018 termination letter. The court upheld the trial court's finding that the termination was fair and lawful. On reliefs, the Appellant was found not entitled to notice pay, damages for unfair termination, underpayment (no minimum wage orders produced), leave pay (she had taken 138 days against an entitlement of 126), or service pay (offered but reversed). The appeal was dismissed with costs to the Respondent.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial court erred by finding that the Appellant's termination of employment was fair and lawful
  2. 2.Whether the trial court erred by disallowing the reliefs sought by the Appellant

Key legal issues

#
01

Whether the termination of the Appellant's employment was fair and lawful

Holding

The trial court correctly found the termination fair and lawful; the Appellant failed to discharge her burden under section 47(5) and repudiated her own contract by demanding and reversing her dues and absconding duties

Reasoning

Section 47(5) places the burden of proving unfair termination on the employee. The Appellant took an off day without permission, amounting to absconding and gross misconduct. She demanded her dues, which were tendered but reversed, evidencing an intention not to return. Relying on Pius Machafu Isindu v Lavington Security Guards Limited, the court held that the Appellant failed to lay the foundation requiring the employer to justify the termination, and upheld the trial court's finding of fair and lawful termination. The redundancy claim also failed since the parties continued working despite the April 2018 termination letter.

p. 6
02

Whether the trial court erred by disallowing the reliefs sought (notice pay, underpayment, leave pay, service pay, compensation)

Holding

The Appellant was not entitled to any of the reliefs: she repudiated her contract, failed to prove underpayment with minimum wage orders, exceeded her leave entitlement, and reversed the offered service pay

Reasoning

Having been fairly terminated, no damages or notice pay were due. Underpayment requires proof of the applicable minimum wage orders, which were not produced. The Respondent's records showed the Appellant had taken 138 leave days against an entitlement of 126. Service pay was offered but reversed by the Appellant, and in any event she did not prove unfair termination entitling her to the reliefs under sections 45 and 49 of the Employment Act.

p. 7

Legal principles established

#
  • The duty of the first appellate court is to re-evaluate the evidence on both points of law and facts and come up with its own findings and conclusions, while giving due allowance to the trial court's advantage of seeing and hearing the witnesses
  • Under section 47(5) of the Employment Act, the burden of proving unfair termination rests on the employee; only when that foundation is laid does the employer bear the burden of justifying the grounds of termination under section 43
  • An employee who demands and collects her dues evidences an intention not to continue in employment and thereby repudiates her own contract

Court orders

#
  1. 1.The Appeal is found without merit and is dismissed with costs

The bench

#

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

Wrote the judgment

On appeal from
Magistrates' Court (CMELRC)
CMELRC No. 160 of 2019
Jurisdiction invoked
First appellate jurisdiction over CMELRC matters; judgment rendered by the Presiding Judge-Appeals Division

Relief refused

#

Set aside of the trial court's judgment and entry of judgment in favour of the Appellant

The appeal was found to be without merit; the court upheld the trial court's finding that the termination was fair and lawful

p. 7

Damages for unfair termination and one month's notice pay

The Appellant was found to have repudiated her own contract and was fairly terminated

p. 7

Underpayment claim

Underpayment must be specifically proved by producing the relevant minimum wage orders, which the Appellant did not

p. 7

Leave pay

The Respondent showed the Appellant had taken 138 days of leave instead of the 126 days she was entitled to

p. 7

Service pay

The Respondent offered service pay which the Appellant reversed, and she did not prove unfair termination

p. 7

Costs

The Appeal is 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.

It is settled law that the duty of the first appellate court is to re-evaluate the evidence in the subordinate court both on points of law and facts and come up with its own findings and conclusions
p. 5Standard of review on first appeal
The court upholds the trial court finding that the Appellant was fairly and lawfully terminated.
p. 6Burden of proof of unfair termination - section 47(5) Employment Act
she was not entitled to any damages for unfair termination or notice pay since she terminated her own contract without notice to the Respondent.
p. 7Repudiation of contract by employee
In the upshot the Appeal is hereby found without merit and is hereby dismissed with costs.
p. 7Final orders - dismissal of appeal

Issues in the judgment

#
minor

The judgment refers to the trial court's dismissal of 'the Claimants' claim' in the plural although the record otherwise refers to a single Claimant/Appellant

minor

The judgment omits paragraph number 36, jumping from paragraph 35 to paragraph 37

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Ayuma v Omunga (Appeal E220 of 2023) [2025] KEELRC 673 (KLR)", Case Analysis (2025). Not stated in the judgment (Memorandum of Appeal dated 31st October 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/673/eng@2025-02-28

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