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Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal No 129 of 2016· [2020] KECA 918 (KLR)

Cavine Ouma Were v Pioneer Plumbers Limited

Court of Appeal of Kenya
24 January 2020
3,705 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that an employee claiming unfair termination must prove it, and a court need not follow a labour office conciliator's findings.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nairobi against the ruling of the Employment and Labour Relations Court (Mbaru, J.) which largely dismissed the appellant's claim for unfair termination, awarding only Kshs. 5,400.00 in underpayment and ordering the appellant to refund Kshs. 25,700.00 paid by the respondent following labour office conciliation. The appellant, employed as a casual labourer whose employment was deemed regular under Section 37 of the Employment Act, challenged the trial court's findings on the duration of employment, the alleged abscondment, and the trial court's failure to adopt the District Labour Office's findings and calculations. The Court of Appeal framed two issues: whether the appellant was unlawfully terminated and entitled to remedies, and whether the trial judge was bound by the conciliator's findings. On the first issue, applying Sections 43, 45, 47(5) and 41 of the Employment Act, the Court held the appellant had not discharged his burden of proving unfair termination; he could not establish bereavement leave or attendance at burials, and the respondent's attendance sheets showed he had absconded for at least five months. On the second issue, the Court held that adoption of a conciliator's findings is commendable but not mandatory; the trial judge could depart from them for sound reasons, which she gave, particularly as the conciliator's report was not on record. The Court found no basis for interfering with the trial court's findings and dismissed the appeal with no order as to costs due to the appellant's impecunious status. The decision below was affirmed in its entirety.

Key legal issues

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01

Whether the appellant's termination was unfair and whether he was entitled to the remedies sought

Holding

The appellant failed to discharge his burden under Section 47(5) of proving unfair termination; the trial court correctly found he absconded for at least five months, so the termination was not unfair and most reliefs were unavailable.

Reasoning

The Court examined Sections 43, 45 and 47(5) of the Employment Act, which allocate the burden of proving unfair termination to the employee. The appellant could not prove his mother's or sister's death, the burials, or the days worked. The respondent produced attendance sheets from which the appellant could not establish a gap of over five months, supporting the finding of abscondment.

p. 4
02

Whether the trial judge was bound by the findings of the District Labour Office (conciliator)

Holding

A trial court is not bound by a conciliator's findings and may depart from them for sound reasons; the learned Judge properly relied on the evidence on record since neither the conciliator nor the appellant was clear on the term of service.

Reasoning

The conciliator's report containing investigation and recommendations was not on record, the respondent had refuted the conciliator's allegations with documentary evidence, and neither the conciliator nor the appellant was clear as to the term of service. The Judge therefore justifiably relied on the evidence before her and could not be faulted.

p. 4

Legal principles established

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  • While commendable, a trial court is not mandatorily bound to adopt a conciliator's or labour officer's findings; it may depart from them for sound reasons given in its ruling.
  • Under the Employment Act, the employee bears the burden of proving that an unfair termination occurred, while the employer bears the burden of justifying the grounds for termination.
  • On a first appeal, the Court of Appeal is enjoined to re-evaluate the evidence and arrive at its own decision, subject to the caveat that it did not see or hear the witnesses.

Court orders

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  1. 1.Appeal dismissed
  2. 2.No order as to costs on account of the appellant's impecunious status
On appeal from
Employment and Labour Relations Court of Kenya at Nairobi
E.L.R.C Cause No. 1261 of 2013
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Appeal against the Judgment and Decree of the ELRC)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Cavine Ouma Were v Pioneer Plumbers Limited", Case Analysis (2020). Civil Appeal No 129 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/918/eng@2020-01-24

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