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ELRCDismissedNot stated in judgment (separate Memoranda of Appeal dated 17th September 2024, consolidated 10th February 2025)

Guantai v China Far East Construction Company Limited (Employment and Labour Relations Appeal E024, E025, E026 & E027 of 2024 (Consolidated)) [2025] KEELRC 2259 (KLR)

Employment and Labour Relations Court
30 July 2025
1,653 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Four Kenyan workers lost their unfair termination appeals because they couldn't prove they were actually employed — demand letters alone were not enough.

What this practically means

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Executive summary

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Four separate suits filed before the Senior Principal Magistrates Court at Kigumo claimed declarations that the appellants' employment had been unlawfully terminated by the respondent during road construction works (Makomboki-Gituru-Waiyaki Junction), together with compensatory damages, accrued benefits, costs and interest. The trial court (Hon. Irura SPM) found that the appellants had not proved the employment relationship and dismissed the suits with costs. The appellants appealed by separate memoranda dated 17th September 2024; the appeals were consolidated by consent on 10th February 2025 and disposed of by written submissions. On appeal, Makau J, applying Selle v Associated Motor Boat Company Ltd, re-evaluated the evidence. The appellants had testified and produced only demand letters, with no written, oral or implied contract proved, no bank statements or salary evidence, and no witnesses. RW1 denied the employment and admitted having nothing to prove payment of dues. The court further held that documents appearing in the record of appeal but never exhibited at trial, and included without leave of court, could not be considered, and questioned the respondent's submissions on matters RW1 never mentioned. The court framed three issues and answered the first in the negative: the appellants failed to prove employment on a balance of probabilities, so the question of unlawful termination under section 41 of the Employment Act did not arise. The trial court's finding was affirmed and all four appeals were dismissed with costs on 30th July 2025, the judgment being delivered via Teams with the parties' consent.

Questions the Court framed

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

  1. 1.Whether the appellants were employed by the respondent as alleged in their pleadings.
  2. 2.If the answer to (a) is in the affirmative, whether the employment was unlawfully terminated.
  3. 3.Whether the appeal should be allowed and the reliefs sought in the lower court granted.

Key legal issues

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01

Whether an employment relationship was proved

Holding

No. Apart from demand letters, no evidence of oral or implied contract, salary payments, or witnesses was adduced; the appellants' own counsel conceded on cross-examination there was no documentary proof.

Reasoning

The appellants alleged employment during road construction works and payment of salaries through the bank, but produced only demand letters. Each testified but called no witnesses. RW1 denied the employment and admitted having nothing to prove the appellants were paid dues. Under section 107 of the Evidence Act the burden lay on the appellants and was not discharged; the trial court's finding was therefore affirmed.

p. 4
02

Whether documents not produced at trial could be admitted on appeal

Holding

No. Documents in the record of appeal that were not exhibits in the lower court, and were included without leave, are inadmissible.

Reasoning

The list of documents dated 29th January 2021 listed demand letters as the only documents relied upon, subject to any others with leave of court. The proceedings showed only one witness per suit and only the demand letter produced as exhibit 1. The court questioned why counsel did not protest inclusion of extraneous documents and declined to consider them.

p. 4
03

Whether the employment was unlawfully terminated

Holding

The issue did not arise because the foundational fact of employment was not proved.

Reasoning

The second issue was conditional on a finding of employment. Since the appellants failed to prove they were employed, the alleged unlawful termination under section 41 of the Employment Act could not be established, and the submissions relying on Alphonse Maghanga Mwachanya v Operation 680 Limited on termination procedure fell away.

p. 3

Legal principles established

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  • On a first appeal, the court must re-evaluate the evidence and reach its own conclusion while making allowance for not having seen or heard the witnesses
  • A party alleging an employment relationship bears the burden of proving it on a balance of probabilities, whether the contract is written, oral or implied
  • Documents not produced as exhibits at trial and included in the record of appeal without leave of the court cannot be considered on appeal

Court orders

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  1. 1.The finding of the trial court that the appellants did not prove they were employed by the respondent is affirmed
  2. 2.All the appeals are dismissed with costs

The bench

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

majority

Wrote the judgment

On appeal from
Senior Principal Magistrates Court at Kigumo
Not stated
Jurisdiction invoked
First appellate jurisdiction over appeals from the Senior Principal Magistrates Court (ELRC Procedure Rules referenced); exact enabling provision not stated
Consolidated with
Four separate appeals consolidated by consent of the parties on 10th February 2025 (individual appeal numbers not stated)

Relief refused

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Setting aside the trial court's dismissal and substitution with awards of damages as sought in the lower court

The appellants failed to prove, on a balance of probabilities, an employment relationship with the respondent; without proof of employment the claim of unlawful termination could not stand

p. 4

Costs

The appeals stand dismissed with costs to the respondent

Quotable passages

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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 view of the foregoing all the appeals collapse and they all stand dismissed with costs.
p. 4Final orders - dismissal of the consolidated appeals
I hold that the appellants did not prove, on a balance of probability, that they were employed by the respondent as alleged.
p. 4Burden of proof of employment relationship
Consequently, I find that any other documents included in the record of appeal without leave of the court cannot be considered.
p. 4Admissibility of documents not exhibited at trial
This being a first appeal, the mandate of the court is to re-evaluate the evidence on record and arrive at its own independent conclusion, while appreciating that it did not see the witnesses when they gave their testimonies.
p. 3Duty of a first appellate court

Issues in the judgment

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material

Appellants' submissions asserted bank statements were produced to prove salary payment, but the judgment records that only demand letters were exhibited and no bank statements were produced

minor

RW1's evidence is internally contradictory on whether terminal dues were paid

minor

Individual names of the appellants and the respondent are not stated in the judgment text; parties are referred to only as appellants and respondent, and the respondent is inconsistently described (Ms Bao Luri as witness; respondent 'deals with construction')

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, "Guantai v China Far East Construction Company Limited (Employment and Labour Relations Appeal E024, E025, E026 & E027 of 2024 (Consolidated)) [2025] KEELRC 2259 (KLR)", Case Analysis (2025). Not stated in judgment (separate Memoranda of Appeal dated 17th September 2024, consolidated 10th February 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2259/eng@2025-07-30

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