Isindu v Lavington Security Guards Ltd (Civil Appeal 301 of 2015) [2017] KECA 225 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that an employee claiming unfair termination must first prove they were actually terminated—not the employer.
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 appellant's employment was unfairly terminated by the respondent or whether he deserted his employment
- 2.Whether the trial court erred in placing the burden of proof on the appellant contrary to sections 43, 45 and 47(5) of the Employment Act
- 3.Whether the employer was required to produce employment records under section 74 of the Employment Act
- 4.Whether the appeal should be allowed and the decision of the Employment and Labour Relations Court set aside
Key legal issues
#Whether the appellant was unfairly terminated or deserted his employment
The appellant failed to prove that his services were terminated; the trial court's finding that he deserted duty was fully supported by the evidence and is affirmed.
The appellant's testimony did not lay the necessary foundation to require the employer's response under section 43. He was confused about the officers who employed and deployed him, made no immediate protest to the respondent or labour officer, sent a demand letter only five months later and filed his claim six months after the alleged termination. The trial court, which saw and heard the respondent's witnesses, was the better judge of their credibility. On a balance of probability, he jumped rather than was pushed.
Allocation of the burden of proof in unfair termination claims under section 47(5) of the Employment Act
The employee bears the burden of proving that unfair termination or wrongful dismissal occurred; the employer's burden to justify the grounds arises only after that foundation is laid.
Section 47(5) expressly places the burden of proving unfair termination or wrongful dismissal on the employee, while the burden of justifying the grounds rests on the employer. Section 43(1) requires the employer to prove the reasons for termination, and failure to do so renders the termination unfair, but that obligation is only triggered once the employee has first established that termination actually occurred and was unfair.
Whether the employer's statutory record-keeping duties under sections 3(5), 18, 20, 21 and 74 of the Employment Act required production of employment records
The ground was unnecessary to consider because the fact of employment and compliance with employer documentation duties were not disputed matters, were not raised in the pleadings, and parties are bound by their pleadings.
The respondent did not dispute that the appellant was its employee, so no proof of that fact was required. Compliance with the employer's document-keeping obligations was never raised in the pleadings nor made part of the prayers. Parties are bound by their pleadings, so the first broad ground of appeal could be given a wide berth without deciding the employer's statutory obligations.
The heavy statutory obligations on employers under the Employment Act and their constitutional underpinning
The Act places heavy legal obligations on employers in summary dismissal and unfair termination cases, and those provisions mirror the constitutional right to fair labour relations under Article 41.
The Act requires the employer to prove reasons for termination (section 43), that the reasons are valid and fair (section 45), and that grounds are justified (section 47(5)), with a mandatory notification and hearing process under section 41 and onerous remedies under section 49. These provisions accord with the preamble's object of declaring fundamental rights of employees and mirror Article 41 of the Constitution. The court nonetheless did not decide this ground because the appellant failed at the threshold of proving termination.
Legal principles established
#- An employee claiming unfair termination bears the burden of proving both that termination occurred and that it was unfair or wrongful; only when that foundation is laid does the employer bear the burden of justifying the grounds for termination
- An appellate court will not interfere with a trial court's finding of fact unless it is based on no evidence, on a misapprehension of the evidence, or on wrong principles
Court orders
#- 1.The appeal is dismissed for lack of merit
- 2.The decision of the Employment and Labour Relations Court is affirmed
- 3.No order as to the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court
- Jurisdiction invoked
- Rule 29(1)(a) of the Court of Appeal Rules (retrial/appeal in first appellate jurisdiction)
Relief refused
#The appeal in its entirety, including all ten grounds of appeal
The appellant failed to discharge his evidential burden of proving that his services were terminated and that the termination was unfair or wrongful; on a balance of probability he deserted his employment
Costs
We make no order as to the costs of the appeal.
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.
On a balance of probability, he was not pushed. He jumped.
the appellant in this case had the burden to prove, not only that his services were terminated, but also that the termination was unfair or wrongful.
A Court of Appeal will not normally interfere with a finding of fact by the trial court unless such finding is based on no evidence or on a misapprehension of the evidence or the judge is shown demonstrably to have acted on wrong principles in reaching the finding
On that finding, it only remains for us to dismiss this appeal for lack of merit and afirm the decision of the Employment and Labour Relations Court. We make no order as to the costs of the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (19)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mwololo v Sana Industries Company Ltd (Appeal E215 of 2025) [2026] KEELRC 2445 (KLR)[2026] KEELRC 2445 (KLR)31 Aug 2026applied
- Ashleys Kenya Ltd v Opiyo (Appeal E357 of 2025) [2026] KEELRC 2441 (KLR)[2026] KEELRC 2441 (KLR)31 Aug 2026followed
- Mwangangi v H Young & Company Ltd Estate Africa Limited (Appeal E409 of 2025) [2026] KEELRC 2444 (KLR)[2026] KEELRC 2444 (KLR)31 Aug 2026followed
- Aringo v Blue Nile Rolling Mills (Appeal E165 of 2025) [2026] KEELRC 2438 (KLR)[2026] KEELRC 2438 (KLR)31 Aug 2026applied
- Kiptalam v County Government of Kwale (Civil Appeal (Application) E118 of 2021) [2026] KECA 1286 (KLR)[2026] KECA 1286 (KLR)10 Jul 2026
- Irangi v Teachers Service Commission (Civil Appeal E006 of 2021) [2026] KECA 1087 (KLR)[2026] KECA 1087 (KLR)29 May 2026applied
- Kenya County Government Workers Union v County Government of Kitui & another (Constitutional Petition E003 of 2024) [2025] KEELRC 3735 (KLR)[2025] KEELRC 3735 (KLR)17 Dec 2025
- Towett v Teachers Service Commission (Claim E030 of 2023) [2025] KEELRC 3715 (KLR)[2025] KEELRC 3715 (KLR)16 Dec 2025
- Public Transport Operators Union v North East Coaches Travellers Sacco (Cause E498 of 2024) [2025] KEELRC 2976 (KLR)[2025] KEELRC 2976 (KLR)30 Oct 2025applied
- Birya v Mini Bakeries (Mombasa) Limited (Appeal E167 of 2024) [2025] KEELRC 2939 (KLR)[2025] KEELRC 2939 (KLR)23 Oct 2025
- Kingi v Mini Bakeries (Mombasa) Limited (Employment and Labour Relations Appeal E166 of 2024) [2025] KEELRC 2897 (KLR)[2025] KEELRC 2897 (KLR)23 Oct 2025followed
- Sheer Logic Management Consultants v Baha (Appeal E253 of 2024) [2025] KEELRC 2867 (KLR)[2025] KEELRC 2867 (KLR)9 Oct 2025
- Ng’eno v East African Breweries PLC (Cause E874 of 2023) [2025] KEELRC 2188 (KLR)[2025] KEELRC 2188 (KLR)24 Jul 2025
- Muthui v Kitui Flour Mills Limited (Cause E019 of 2024) [2025] KEELRC 2114 (KLR)[2025] KEELRC 2114 (KLR)17 Jul 2025applied
- John v African Gas and Oil Limited (Cause E087 of 2022) [2025] KEELRC 2023 (KLR)[2025] KEELRC 2023 (KLR)30 Jun 2025followed
- Equator Bottlers Limited v Omanga (Appeal E045 of 2025) [2025] KEELRC 1461 (KLR)[2025] KEELRC 1461 (KLR)15 May 2025
- Equator Bottlers Limited v Sidede (Appeal E046 of 2024) [2025] KEELRC 1439 (KLR)[2025] KEELRC 1439 (KLR)15 May 2025
- Lele v Mwaura t/a Gongoni Market (Appeal E013 of 2024) [2025] KEELRC 1076 (KLR)[2025] KEELRC 1076 (KLR)3 Apr 2025applied
- Kisero v Wabwire (Appeal E190 of 2024) [2025] KEELRC 176 (KLR)[2025] KEELRC 176 (KLR)30 Jan 2025applied
Cite this brief
#Cite this brief
Caselaw, "Isindu v Lavington Security Guards Ltd (Civil Appeal 301 of 2015) [2017] KECA 225 (KLR)", Case Analysis (2017). Civil Appeal No. 51 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/225/eng@2017-11-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.