Ondieki v Comply Industries Ltd (Civil Appeal 33 of 2019) [2023] KECA 1146 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that once a worker proves they were dismissed, the employer must justify the dismissal or it is unfair.
What this practically means
#Executive summary
#Key legal issues
#Allocation of the burden of proof in unfair termination claims under section 47(5) of the Employment Act
The employee discharges the initial burden by proving that an unfair termination occurred; the burden then shifts to the employer to justify the grounds of termination. The trial court erred by requiring the appellant to call the employer's own supervisor as a witness.
Reading section 47(5) of the Employment Act in unison with sections 107 and 108 of the Evidence Act, the Court held that the appellant pleaded and testified that the respondent's supervisor Victor orally terminated his employment, thereby discharging his evidentiary burden. It was then for the respondent, on whose knowledge the events lay, to rebut that evidence or prove no such termination occurred. The trial court misapplied the law by shifting that burden back to the appellant, and the respondent produced no evidence justifying the dismissal.
Whether the dismissal was unfair and wrongful
The dismissal was unfair and unprocedural; it offended section 44(2) and constituted unfair termination under section 45 of the Employment Act.
The respondent summoned the appellant to its head office and sent him to the County Labour Office without substantiating any redeployment or explaining the events, and gave no notice of termination. Section 43(1) requires the employer to prove the reasons for termination, failing which the termination is deemed unfair. The trial court's contrary finding that the appellant contributed to his dismissal was a misapprehension of the evidence, and acceptance of terminal dues after termination could not constitute contribution.
Quantum of compensation for unfair termination
The equivalent of five months' gross wages, calculated at Kshs.66,600.00, was fair and adequate compensation under section 49(1)(c) of the Employment Act.
The remedies under section 49 are discretionary and guided by the thirteen considerations in section 49(4). The appellant was terminated without any reason or justification and did not contribute to his dismissal. Guided by the award in the related case of Alex Charo v Comply Industries Limited before Radido Stephen J., the Court fixed compensation at five months' gross wages computed on the hourly rate for 8 hours a day.
First appellate court's mandate on a first appeal
On a first appeal the Court must independently re-evaluate, reassess and reanalyse the evidence and the applicable law before arriving at its own conclusion.
Rule 31(1)(a) of the Court of Appeal Rules, 2022 confers this mandate, consistent with the Court's decision in Abok James Odera v John Patrick Machira. The Court applied it by independently reviewing the pleadings, evidence and exhibits rather than deferring to the trial court's findings, which is how it identified the misapplication of section 47(5).
Legal principles established
#- Once an employee proves an unfair termination or wrongful dismissal, the burden of justifying the grounds for termination shifts to the employer, who must adduce evidence; failure to do so means the termination is unfair under sections 43 and 45 of the Employment Act
- Remedies under section 49 of the Employment Act are discretionary, to be granted on the peculiar facts of each case having regard to the section 49(4) considerations
- Terminal dues paid under a settlement before a labour officer are all-inclusive of amounts payable on termination, save for damages for unlawful termination which only a court may award
Court orders
#- 1.The finding of the learned Judge that the appellant was fairly dismissed is set aside and substituted with a finding that the appellant was unfairly and wrongfully dismissed
- 2.The appellant is awarded Kshs.66,600.00 as compensation for unfair and wrongful termination of employment
- 3.The appeal in respect of the other claims is dismissed
- 4.The appellant is awarded half the costs of the appeal against the respondent
- On appeal from
- Employment and Labour Relations Court
- Not stated in judgment
- Jurisdiction invoked
- First appeal under rule 31(1)(a) of the Court of Appeal Rules, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Newmatic Kitchen Kenya Limited v Musyimi (Employment and Labour Relations Appeal E206 of 2024) [2025] KEELRC 2626 (KLR)[2025] KEELRC 2626 (KLR)26 Sept 2025
Cite this brief
#Cite this brief
Caselaw, "Ondieki v Comply Industries Ltd (Civil Appeal 33 of 2019) [2023] KECA 1146 (KLR)", Case Analysis (2023). Nakuru Civil Appeal (as stated in judgment; exact number not shown in excerpt). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1146/eng@2023-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.