Seventh Day Adventist Church (EA) Limited & another v Onderi (Appeal E003 of 2025) [2025] KEELRC 1460 (KLR)
The bottom line
#A Kenyan court confirmed a pastor's dismissal was unfair because the employer proved no reason, but reinstatement was barred by the three-year statutory deadline.
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 trial Magistrate erred in granting reinstatement without considering the factors in section 49(4) of the Employment Act
- 2.Whether reinstatement granted more than three years after dismissal contravened section 12(3)(vii) of the Employment and Labour Relations Act
- 3.Whether the award of salary arrears from dismissal to reinstatement was contrary to law
- 4.Whether the trial Magistrate erred in evaluating the evidence given that the Appellants called no witnesses
Key legal issues
#Whether the reinstatement ordered by the trial court was lawful
The reinstatement was erroneous because the statutory three-year period under section 12(3)(vii) of the Employment and Labour Relations Act had elapsed; re-engagement and compensation were substituted.
While the trial court was entitled to grant reliefs for unfair termination, reinstatement was time-barred since more than three years had passed from dismissal. The Court substituted the remedy of 12 months' salary as compensation and ordered re-engagement on the same terms with no loss of benefits, in line with Employment Act remedies of re-engagement or compensation.
Burden of proving reasons for termination
Under section 43 of the Employment Act the employer must prove the reasons for termination; the Appellants offered no defence or evidence, so the termination was unfair.
Section 43 imposes a reverse burden on the employer to tender reasons satisfying the statutory test; where no reason is proved, termination is unfair under section 45. The Appellants entered appearance but filed no defence, called no witnesses and left the Respondent's testimony unchallenged, so the finding of both substantive and procedural unfairness stood, justifying the declaration and compensation.
Whether back salary is recoverable upon reinstatement
Salary is an entitlement, not a common law reward for work done; reinstatement can be accompanied by back pay, but here backpay was displaced by the compensation award.
The Court corrected the Appellants' contention that the common law doctrine that salary is a reward for work done bars salary arrears. Employment law is a special area; reinstatement can include back pay, as the cited TSC v Olale decision recognised. However, since reinstatement itself was set aside, the Court substituted 12 months' salary compensation instead of backpay.
Legal principles established
#- A first appellate court must reconsider the evidence, evaluate it afresh and draw its own conclusions while making allowance for not having seen or heard the witnesses.
- Salary is an entitlement of the employee, not a common law reward for work done; reinstatement can be ordered with back pay.
- Under section 43 of the Employment Act, the employer bears the burden of proving the reasons for termination, failing which the termination is unfair.
Court orders
#- 1.A declaration issued that the dismissal of the Respondent was unfair and unlawful within the meaning of section 43
- 2.An award of 12 month's salary compensation for the dismissal
- 3.Re-engagement of the Respondent on the same terms with no loss of benefits
- 4.Costs of the suit before the Magistrate's Court awarded to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrate's Court at Ogembo
- Not stated in judgment
- Jurisdiction invoked
- First appellate jurisdiction over the Magistrate's Court claim decided under the Employment Act
Relief refused
#Reinstatement as ordered by the trial Magistrate
The statutory period for reinstatement had passed
Costs of the appeal
The Court made no order on costs in respect of the appeal
Costs
Respondent to have the costs of the case before the Magistrate's Court; no order on costs in respect of the appeal (implying each party bears their own costs of the appeal).
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 the final analysis the decision of the Magistrate's Court is set aside and substituted with an order as follows:a. A declaration be and is hereby issued that the dismissal of the Respondent was unfair and unlawful within the meaning of section 43.
The reinstatement ordered was erroneous for having fallen out of the legal parameters. Instead of the backpay which was ordered by the Learned Magistrate, the Court will grant the remedy of 12 month's salary as compensation to the Respondent and order a re-engagement to the position he held with no loss of benefit.
Employment law is a special area of law, it is not akin to civil litigation where common law paradigms hold sway. In appropriate cases reinstatement can be ordered together with back pay. A salary is not a reward for work done. It is an entitlement to an employee.
The case before the Court being a first appeal in the hierarchy of judicial avenues for determination of disputes, requires the appellate court to reconsider the evidence, evaluate it afresh and draw its own conclusions but making allowance for the fact that it neither saw nor heard the witnesses.
Issues in the judgment
#The judgment refers to the Respondent being 'summoned for a disciplinary hearing' and then says he 'was simply issued with a dismissal letter when he presented himself for the disciplinary hearing', and the parties dispute whether the hearing occurred as described; the judgment does not resolve this evidentiary conflict explicitly.
The judgment twice misspells 'offered' and 'sufficient' as 'ofiered' and 'suficient' in the text, and the Appellants' actual names do not appear anywhere in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Seventh Day Adventist Church (EA) Limited & another v Onderi (Appeal E003 of 2025) [2025] KEELRC 1460 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1460/eng@2025-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.