Saha Magongo Mwayaona v China State Construction Engineering Corporation Limited
The bottom line
#A Kenyan welder lost his appeal because he couldn't prove he was actually fired — no termination notice, and his salary kept being paid.
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 Appellant had failed to prove that his employment was unlawfully terminated
- 2.Depending on the determination of the first issue, whether the Trial Court erred in dismissing the reliefs sought by the Appellant
Key legal issues
#Whether the Appellant proved that his employment was terminated on 25th January 2019
The Appellant failed to prove termination on that date; continued payment of salary for January and February 2019 was inconsistent with termination on 25th January 2019, and the alleged redundancy notice was not produced and did not bear his name
The employee bears the initial burden under Section 47(5) of the Employment Act to prove that termination occurred and was unfair before the burden shifts to the employer. The Appellant admitted his salary was paid for January and February 2019, which the Court found inconsistent with termination on 25th January 2019. He did not produce the alleged redundancy notice and admitted his name was absent from it. The Trial Court's finding was therefore supported by evidence.
Whether the Trial Court erred in dismissing the reliefs sought
No error; without a finding of unfair termination the reliefs do not lie
Since the foundational fact of termination was not established, the question of whether the termination was fair or lawful did not arise, and the consequential reliefs (notice pay, compensation, house allowance, leave, gratuity, certificate of service) could not be awarded.
Legal principles established
#- Under Section 47(5) of the Employment Act, the employee bears the initial burden of proving that an unfair termination or wrongful dismissal occurred before the evidential burden shifts to the employer
- A first appellate court must reconsider, re-evaluate and analyse afresh the evidence and reach its own conclusions while allowing for the fact it neither saw nor heard the witnesses
- An appellate court will not ordinarily interfere with findings of fact unless unsupported by evidence, based on misapprehension of the evidence, or reached on wrong principles
Court orders
#- 1.The Appeal fails and is dismissed in its entirety
- 2.Costs of the Appeal to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Murang'a Chief Magistrate's Court (ELRC Cause No. 14 of 2019)
- ELRC Cause No. 14 of 2019
- Jurisdiction invoked
- First appellate jurisdiction of the Employment and Labour Relations Court over the subordinate court's judgment
Relief refused
#All reliefs sought before the Trial Court (notice pay, compensation for unlawful termination, house allowance, leave pay, gratuity, certificate of service, interest and costs)
The Appellant failed to prove that his employment was terminated; absent unfair termination, the reliefs do not lie
Costs
Appeal dismissed with 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.
Ultimately, I find no basis upon which to interfere with the decision of the learned trial Magistrate. Accordingly, the instant Appeal fails and is dismissed in its entirety with costs to the Respondent.
the employee bears the initial burden of proving that an unfair termination or wrongful dismissal has occurred. Once that burden is discharged, the evidential burden shifts to the employer to justify the grounds for the termination of employment
The payment is therefore inconsistent with the Appellant’s contention that his employment had already come to an end on 25th January 2019.
It is noteworthy that the Appellant did not produce before the Trial Court the alleged redundancy notice through which he claimed his employment had been terminated.
Issues in the judgment
#Judgment delivery date appears as 2026, inconsistent with an appeal filed in 2025
Respondent pleaded abscondment on 16th June 2023 but its witness testified the Appellant stopped reporting on 1st June 2023
Boilerplate COVID-19 delivery order appended despite judgment being delivered in 2025/2026
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Saha Magongo Mwayaona v China State Construction Engineering Corporation Limited", Case Analysis (2026). ELRC Appeal No. E047 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2645/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.