Kenya Union of Pre-Primary Education Teachers v Gateway to Learning Center (Appeal E002 of 2023) [2025] KEELRC 2399 (KLR)
The bottom line
#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 Court erred in finding that the Grievant resigned rather than being terminated
- 2.Whether the Trial Court erred in disregarding the claim that the Grievant was employed from 2012
- 3.Whether the Trial Court erred in failing to find the Grievant was away on sick leave
- 4.Whether the Trial Court erred in disregarding documentary evidence on salary, leave, abscondment and salary variances
- 5.Whether a claim brought by a Trade Union on behalf of a member can be established on pleadings and documents alone without calling the member as a witness
Key legal issues
#Whether determination on pleadings and documents was proper
While the E&LRC Rules allow determination on pleadings, affidavits, documents and submissions, not all disputes suit this mode; a Grievant whose contract details are contested must testify
The court held that the Rules permitting documents-based determination do not displace the need for oral evidence where contract terms and circumstances of exit are disputed. The Union was not party to the Grievant's contract and could not establish employment history, termination circumstances, leave and salary claims without her testimony. Evidential gaps were of the Appellant's own making.
Termination or resignation
The Trial Court did not err in not attributing termination to the Respondent; the employment relationship had collapsed and mutual separation was warranted
The Grievant was absent without authorisation from 3rd August to 3rd September 2020, was given options (termination letter, resignation letter, or leave) and did not take any, only requesting time to consult her Advocate. The Respondent thereafter treated her contract as terminated. With serial warnings and collapsed trust, the Trial Court correctly declined to find unilateral termination by the Respondent.
Employment from 2012 and sick leave claims
No document or oral evidence showed employment from 2012; no medical document established sick leave under Section 30 of the Employment Act
The Grievant alleged employment from 2012 while the Respondent said she was a volunteer on a stipend. No letter of employment or other document was exhibited. On sick leave, the list of documents contained no medical certificate, and the Grievant did not notify the Respondent as required by Section 30 of the Employment Act. The Trial Court did not err on either finding.
Legal principles established
#- Where a Trade Union brings a claim on behalf of a member and the details of the member's contract of employment are contested, the member ought to be availed as a witness; a claim cannot be established on pleadings, documents and submissions alone in such circumstances
- A party that opts not to call witnesses cannot later complain that the court disregarded evidence or failed to establish its claim
Court orders
#- 1.The Appeal is declined.
- 2.Costs to the Respondent.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Employment and Labour Relations Court (Trial Court)
- Jurisdiction invoked
- Appellate jurisdiction under the Employment and Labour Relations Court (Procedure) Rules; appeal delivered pursuant to Rule 68(5) of the E&LRC (Procedure) Rules, 2024
Relief refused
#Setting aside the Trial Court judgment and substituting it with judgment allowing the Claim
The Appeal has no merit; the Appellant failed to present the Grievant as a witness and did not establish the Claim to the required standard
Costs of the Appeal to the Appellant
Appeal declined; costs awarded to the Respondent
Costs
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.
Where a Trade Union brings a Claim on behalf of its member, and details of the member’s contract of employment are contested, that member ought to be availed to the Court, to explain details of his or her contract.
If there were any evidential gaps, the Appellant cannot blame the Court for reaching the finding that the Appellant had not established its Claim, on behalf of its member, to the required standard.
It was a relationship where trust and confidence had completely collapsed, and mutual separation warranted.
It Is Ordered: a. The Appeal is declined. b. Costs to the Respondent.
Issues in the judgment
#The names of the parties (the Trade Union and the Respondent) and the trial court case number are not stated in the judgment, which refers only to 'The Appellant' and 'The Respondent'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Pre-Primary Education Teachers v Gateway to Learning Center (Appeal E002 of 2023) [2025] KEELRC 2399 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2399/eng@2025-08-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.