Akamah v Board of Management Awasi Catholic Mission Hospital (Appeal E035 of 2025) [2025] KEELRC 2952 (KLR)
The bottom line
#A Kenyan court awarded a nurse only KShs.36,000 in unpaid salary because she could not prove she was unfairly sacked, even though the hospital never defended the case.
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 learned trial magistrate failed to consider, evaluate and apply the evidence before the court
- 2.Whether the appellant was an employee of the respondent
- 3.Whether the termination of the appellant's employment was unfair
- 4.Whether the trial court failed to consider the appellant's written submissions
- 5.What reliefs, if any, the appellant is entitled to
Key legal issues
#Whether the appellant proved an employment relationship with the respondent
The court found on re-evaluation that the appellant was an employee of the respondent but did not render services continuously
The bank statement showed payments from the respondent in November 2023 and January 2024, establishing a contractual relationship with salary consideration and showing the appellant was not a casual employee under Section 37 of the Employment Act. However, gaps in payment, absence of NSSF/NHIF/P9 records, a rota for only one month, and failure to avail earlier bank statements meant continuous service was not proven.
Whether termination of employment was proven and unfair
Not proven; the claim failed
Under Section 47(5) of the Employment Act the burden of proving unfair termination rests on the employee. The appellant's written statement was silent on how the termination took place, she adduced no evidence of appealing or returning for dues, and a mere allegation of termination on a date is insufficient. The event must be evidentially demonstrated even in an undefended suit.
Whether the trial court failed to consider the appellant's submissions
No error found
The trial magistrate had expressly stated she considered the submissions but did not reproduce them, and a court is not bound to reproduce submissions as long as the judgment demonstrates consideration of evidence and law. Submissions are not evidence and many cases are decided without them.
Entitlement to salary arrears
Award limited to Kshs.36,000 for December 2023 and 11 days of February 2024
November 2023 and January 2024 salaries were shown as paid. Without testimony of working without rest days, and 13th February 2024 being a Tuesday, only 11 days at Kshs.1,000 per day were allowed for February, totalling Kshs.36,000.
Legal principles established
#- Even in an undefended suit the burden of proof is not lowered; the claimant must still prove the employment relationship and the unfair termination on a balance of probabilities
- The employee bears the burden of evidentially demonstrating unfair termination, after which the burden shifts to the employer to justify it
- Submissions do not constitute evidence
- A party relying on a document bears the duty to make it understandable and usable as evidence
Court orders
#- 1.The judgment of the trial court dated 28th May, 2025 is set aside in its entirety
- 2.In place of the trial court's judgment, an award of Kshs.36,000.00 is entered for the appellant being salary for December 2023 and 11 days in February 2024
- 3.All other claims were found unmerited and dismissed
- 4.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Nyando Magistrate's Court
- MCELRC No. E004/2024
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court's judgment (this is an appeal to the ELRC against the decision of the trial magistrate)
Relief refused
#Declaration that termination was unfair and 12 months' compensation
The appellant did not provide sufficient evidence that the respondent terminated her employment unfairly; the alleged termination lacked any supportive evidence
Salary arrears for November 2023 and January 2024
Bank statement showed the appellant was paid for those months and no claim for any balance was made
Overtime of Kshs.134,615.00
No evidence of any agreement to pay overtime, how it was claimed or paid
KRA P9 form
Matters relating to tax and filing of returns are the domain of the Kenya Revenue Authority, not the court
Costs
Parties shall bear their own costs.
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.
Even though the claimant’s evidence remain uncontroverted, the claimant is still required to prove his/ her case to the required threshold.
A mere statement that an unfair termination of employment has taken place on a particular date is not suficient evidence that indeed an unfair termination of employment occurred on that day.
Submissions cannot take the place of evidence… submissions are generally parties’ ‘marketing language’ each side endeavouring to convince the court that its case is the better one.
Consequently, the appeal is partially successful and the judgment of the trial court dated 28th May, 2025 is set aside in its entirety and in its place an award of Kshs.36,000.00 being the salary for December 2023 and 11 days in February 2024.
All other claims were unmerited. Parties shall bear their own costs.
Issues in the judgment
#Internal inconsistency in the date of the trial court's judgment - described as 28th May, 2024 at the start but 28th May, 2025 later
The court describes itself as a first appellate court while hearing what is numbered as the original cause (MCELRC No. E004/2024), suggesting the appeal is from a lower court file of the same or related number
Recital of COVID-19 virtual delivery directions in a judgment delivered in October 2025 is anomalous
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Akamah v Board of Management Awasi Catholic Mission Hospital (Appeal E035 of 2025) [2025] KEELRC 2952 (KLR)", Case Analysis (2025). MCELRC No. E004/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2952/eng@2025-10-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.