Isaac Otieno Onyango v China State Construction Engineering Corporation Limited
The bottom line
#A Kenyan welder lost his unfair termination appeal because he couldn't prove he was actually fired — evidence comes first.
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
No. The Appellant did not produce the alleged redundancy notice, admitted his name was not on it, and admitted being paid salary for January and February 2019, which is inconsistent with termination on 25th January 2019.
The Appellant pleaded termination by a redundancy notice posted on 25th January 2019 but never produced it and admitted his name was absent from it. He conceded receipt of salary for January and February 2019, which the Court found inconsistent with termination on 25th January 2019. Under Section 47(5) of the Employment Act, the employee bears the initial burden of proving termination and its unfairness before the burden shifts to the employer. The Appellant failed to discharge that burden on a balance of probabilities.
Whether the Trial Court erred in dismissing the reliefs sought
No. Since no unfair termination was established, the reliefs do not lie.
The reliefs (notice pay, compensation, house allowance, leave, gratuity, certificate of service) were all premised on a finding of unfair or wrongful termination. Having found that the Appellant failed to establish that his employment was terminated at all, the question of the fairness or lawfulness of the alleged termination does not arise, and the reliefs necessarily fail. The Trial Court's dismissal of the claim was therefore correct and there was no basis to interfere with it.
Whether the Appellant deserted duty from June 2023
Not determined; outside the scope of the appeal since the Appellant's case was termination on 25th January 2019.
The Respondent contended the Appellant deserted duty in June 2023, but the Court held this issue did not fall for determination because the Appellant's pleaded case before the Trial Court was termination on 25th January 2019. The Court declined to make findings on desertion, leaving that question open.
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
Court orders
#- 1.The Appeal fails and is dismissed in its entirety with costs 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. 8 of 2019)
- ELRC Cause No. 8 of 2019
- Jurisdiction invoked
- First appellate jurisdiction of the Employment and Labour Relations Court over the subordinate court's employment cause
Relief refused
#All reliefs sought in the Memorandum of Claim (notice pay, compensation for unlawful termination, house allowance, leave, gratuity, certificate of service)
The Appellant failed to prove that his employment was terminated on 25th January 2019; 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
As a first appellate Court, this Court is required to reconsider, re-evaluate and analyse afresh the evidence adduced before the Trial Court and arrive at its own independent conclusions.
In the absence of a finding of unfair termination, the reliefs sought by the Appellant before the Trial Court do not lie.
Issues in the judgment
#Judgment delivery date (25 September 2026) post-dates the appeal filing (10 October 2025) but the cause originated in 2019; chronology as printed appears anomalous.
Respondent's name differs between the cause title and the lower court case name.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Isaac Otieno Onyango v China State Construction Engineering Corporation Limited", Case Analysis (2026). ELRC Appeal No. E048 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2646/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.