Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No. 213 of 2015· [2017] KECA 651 (KLR)

Premier Construction Limited v Josephat Bwire Lukale & 5 others [2017] KECA 651 (KLR)

Court of Appeal
24 March 2017
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'inoti
2,108 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed that employees, not employers, must prove unfair termination — and the workers here lost because they couldn't.

What this practically means

#

Executive summary

#
The respondents were employees of Premier Construction Limited whose factory burnt down on 24th June 2013. They were paid June salaries and told to stay away while the appellant sought insurance compensation, with assurances of reinstatement. When the factory reopened around 1st October 2013, some employees were recalled but not the respondents, who sued in the Employment and Labour Relations Court. Nzioka wa Makau, J. held that the selective re-engagement amounted to constructive summary dismissal, awarded each respondent one month's salary in lieu of notice and ten months' compensation under sections 49 and 50 of the Employment Act, and dismissed the leave pay claims. On appeal, the Court of Appeal (Makhandia, Ouko and M'inoti, JJ.A.) held that under section 47(5) of the Employment Act the employees bore the burden of proving unfair termination and failed to discharge it, as no evidence showed they were turned away, while the appellant's letter to the labour officer and pleadings demonstrated good faith and a willingness to re-engage them. The Court adopted the Western Excavating v Sharp test for constructive dismissal, holding that the concept must be founded on a fundamental breach and was neither pleaded nor proved before the trial judge. Allowing the appeal, the Court set aside the judgment and decree of the ELRC and dismissed the respondents' claim, with no orders as to costs in either the appeal or the suit. The judgment binds the High Court and the ELRC on burden of proof and constructive dismissal.

Key legal issues

#
01

Burden of proof in unfair termination claims under section 47(5) of the Employment Act

Holding

The employees, as the parties alleging unfair termination, bore the burden of proving both that they were dismissed and that the dismissal was unjustified; they failed to discharge it

Reasoning

Section 47(5) of the Employment Act places the burden of proving unfair termination on the employee. The respondents claimed selective re-engagement but supplied no names of reinstated workers, while the appellant's letter to the labour officer and pleadings demonstrated a continuing willingness to re-absorb them. The trial judge therefore erred in effectively shifting the burden to the employer.

p. 3
02

Constructive termination/dismissal

Holding

Constructive dismissal, though not provided for in the Employment Act, is accepted in Kenyan law per Western Excavating v Sharp, but requires proof of a fundamental breach going to the root of the contract; it was neither pleaded nor proved here

Reasoning

The trial judge founded liability on constructive summary dismissal, a concept not raised in the pleadings or submissions. The Court adopted Lord Denning MR's formulation in Western Excavating (ECC) Ltd v Sharp and the ELRC decisions applying it, holding that none of the requisite grounds was proved since the appellant never turned the respondents away and could not be said to have acted in breach of justice and equity.

p. 4

Legal principles established

#
  • The burden of proving that an unfair termination or wrongful dismissal has occurred rests on the employee; only the burden of justifying the grounds for termination rests on the employer
  • Constructive dismissal will only be imputed where the employer is in fundamental breach of the contract of employment, and it must be pleaded and supported by evidence

Court orders

#
  1. 1.The appeal is allowed
  2. 2.No orders as to costs of the appeal
  3. 3.The judgment and decree of the Employment and Labour Relations Court dated 27th February, 2015 is set aside
  4. 4.The respondents' claim dated 4th March, 2014 is dismissed with no orders as to costs

Authorities

#

Legislation

  • Employment Act, No. 11 of 2007section 45(1)
  • Employment Act, No. 11 of 2007section 45(4)
  • Employment Act, No. 11 of 2007section 46
  • Employment Act, No. 11 of 2007section 47(5)
  • Employment Act, No. 11 of 2007section 49
  • Employment Act, No. 11 of 2007section 50

Cases cited (4)

  • Western Excavating (ECC) Ltd v Sharp
    [1978] ICR 221
  • Anthony Mkala Chitavi V Malindi Water & Sewerage Company Ltd
    Cause No. 64 of 2012
  • Emmanuel Mutisya Solomon V Agility Logistics
    Cause No. 1418 of 2011
  • Benuel Mariera V Awanad Enterprises Limited
    Msa. Cause No 191 of 2013
On appeal from
Employment & Labour Relations Court at Nairobi
E.& L.R.C. Cause No. 313 of 2014
Jurisdiction invoked
First appeal from the Employment & Labour Relations Court under the Employment Act framework (statutory appeal; no specific constitutional provision stated in the judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (7)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Premier Construction Limited v Josephat Bwire Lukale & 5 others [2017] KECA 651 (KLR)", Case Analysis (2017). Civil Appeal No. 213 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/651/eng@2017-03-24

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