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ELRCDismissedNyando MCELRC No. E006 of 2024 (Appeal)· [2025] KEELRC 2937 (KLR)

Odhiambo v Board of Management St Mary’s Awasi Catholic Mission Hospital (Appeal E036 of 2025) [2025] KEELRC 2937 (KLR)

Employment and Labour Relations Court
29 October 2025
3,322 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The Employment Court confirmed that employees must prove unfair termination with solid evidence — even when the employer does not show up to defend the case.

What this practically means

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Executive summary

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This is a first appeal against the judgment of Hon. Edina Nyaboke Angima dated 28th May 2025 in Nyando MCELRC No. E006 of 2024, which had dismissed a former nurse's claim in formal proof proceedings after the respondent neither entered appearance nor filed a response. The appellant alleged she was employed as a nurse at Kshs.25,000 per month, confirmed after probation, and unfairly terminated by the respondent's Administrator, Sister Victoria Orwa, claiming notice pay, twelve months' compensation, salary arrears, overtime, service pay, a KRA P9 form and a certificate of service. The appeal was mounted on five grounds, essentially that the trial magistrate failed to consider and properly evaluate the evidence and submissions. Guided by the Selle principles on first appeals, the court re-evaluated the record and found only the appointment letter and an NSSF statement showing a June 2023 contribution proved the employment relationship. There was no evidence of confirmation, renewal or continued service after the probation period ended on 31st August 2023 - no bank statements, duty rota, employment records, or follow-up on unpaid salary. The witness statement was also silent on the circumstances of the alleged termination. Applying Section 47(5) of the Employment Act, the court held the employee bears the burden of proving unfair termination even in an undefended suit. The trial court was held to have expressly considered the submissions, and, in any event, submissions are not evidence. The appeal was dismissed with no orders as to costs, the court noting the appellant was entitled only to a certificate of service under Section 51 of the Employment Act.

Key legal issues

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01

Employment relationship beyond the probationary period

Holding

The appellant failed to prove she was an employee after 31st August 2023

Reasoning

The appointment letter alone proved the employment relationship. Beyond the NSSF contribution for June 2023, there was no evidence of confirmation, renewal, or continued service - no bank statements, duty rota, or employment card. The claimant also produced no evidence of following up on unpaid salary arrears, making it difficult to find she worked unpaid from November 2023 to February 2024.

p. 5
02

Unfair termination

Holding

Termination was not proved; the claim fails

Reasoning

The witness statement was silent on the circumstances of the alleged termination - whether the appellant was on duty, the venue, timing, mode of communication, or her actions afterwards. These omissions reduced the probative value of the unsupported statement. Under Section 47(5) of the Employment Act the employee bears the burden of proving unfair termination, which remains even in an undefended suit.

p. 6
03

Failure to consider submissions

Holding

The trial court expressly considered the submissions; no error

Reasoning

The trial magistrate stated in her judgment that she considered the submissions without reproducing them. In any event, submissions are not evidence and cases may be decided without them, though they play a significant role in enriching decision-making.

p. 6
04

Accrued reliefs

Holding

Only a certificate of service was earned; salary arrears and overtime unproven; service pay barred

Reasoning

Having failed to prove continued employment, salary arrears failed. Overtime had no evidential support. NSSF membership disqualified service pay under Section 35(5)(d). Tax matters fall to KRA. However, under Section 51 of the Employment Act the appellant is entitled to a certificate of service.

p. 7

Legal principles established

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  • The burden of proving unfair termination or wrongful dismissal rests on the employee regardless of whether the employer defended the claim
  • A mere statement that termination occurred on a particular date is insufficient proof of termination or of its unfairness
  • Submissions do not constitute evidence
  • In a first appeal the court reconsiders and evaluates the evidence afresh while making due allowance for not having seen or heard the witnesses

Court orders

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  1. 1.The appeal is dismissed
  2. 2.No orders as to costs
On appeal from
Nyando Magistrates' Court (MCELRC)
Nyando MCELRC No. E006 of 2024
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's judgment

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, "Odhiambo v Board of Management St Mary’s Awasi Catholic Mission Hospital (Appeal E036 of 2025) [2025] KEELRC 2937 (KLR)", Case Analysis (2025). Nyando MCELRC No. E006 of 2024 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2937/eng@2025-10-29

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