Buku v Sagar Builders Limited (Civil Appeal 360 of 2018) [2024] KECA 526 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that an employer who never wrote a required employment contract cannot deny the job existed when the worker gives credible evidence.
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 proved the existence of an oral contract of service with the respondent
- 2.Where the burden of proof lies where the law requires an employment contract to be in writing but the employer has failed to draw it up
- 3.Whether the termination of the appellant's employment was unfair
- 4.Whether this Court should assess damages itself or remit the assessment to the trial court
Key legal issues
#Burden of proving an oral contract of employment where a written contract is statutorily required
The appellant's unshaken evidence of the date of employment, who hired him, the nature of employment, duties, place of work and pay sufficed to require rebuttal; the employer, who bore responsibility for drawing the written contract, led no evidence, so the appellant's account had to be believed.
Section 9 of the Employment Act requires contracts of service of three months or more to be in writing, with the responsibility of drawing up the contract on the employer. Where the employer fails to do so, the employee is disadvantaged in marshalling documentary evidence and the employer cannot benefit from that failure. Once the employee leads some evidence of the contract of service, the burden shifts to the employer. The respondent only denied the employment in pleadings without calling evidence.
Unfair termination under section 43 of the Employment Act
The appellant's evidence that employment was terminated without notice stood unrebutted; the respondent, having called no evidence, failed to prove the reason for termination, rendering the termination unfair.
Section 43(1) of the Employment Act places on the employer the burden of proving the reasons for termination in any claim arising out of termination of a contract. Failure to discharge that burden results in the termination being deemed unfair under section 45. The respondent offered no evidence at trial, so it suffered the consequences flowing from section 43.
Duty of the appellate court on a first appeal
As a first appellate court, the Court re-evaluated and subjected the trial evidence to fresh assessment despite not having heard or seen the witnesses testify.
A first appellate court has a remit to re-evaluate the evidence and draw its own conclusions, bearing in mind that it did not hear or see the witnesses testify. Applying that duty, this Court reached a different outcome from the trial court on whether the oral contract was proved.
Assessment of damages where the trial court made no assessment
The Court declined to assess damages itself and remitted the matter to the ELRC for assessment, preserving the parties' right of appeal.
Although the Court considered determining damages to bring the old matter to an end, it decided that justice is better served by leaving that duty to a trial court, so that any dissatisfied party can exercise the right of appeal, a tenet of the right to fair hearing. The trial court had also conventionally erred in not assessing damages even where liability was not proved.
Legal principles established
#- Where the law requires an employment contract to be in writing and the employer fails to draw it up, the employer is required to provide evidence and proof of the contract of service once the employee marshals some evidence of employment, after which the burden shifts to the employee to disprove it.
- An employee should not be penalised for the non-existence of a written contract required by law where the employer has failed to draw it up, and the employer should not benefit from a situation it created.
- Where an employer fails to prove the reason or reasons for termination, the termination is deemed unfair under section 45 of the Employment Act.
- A trial court is duty bound to return an opinion on damages even where liability is not proved.
Court orders
#- 1.Judgment of Wasilwa, J delivered on 21st September 2017 set aside
- 2.Declaration that there was a contract of service between the appellant and the respondent which was unlawfully terminated by the respondent
- 3.Respondent to issue a certificate of employment to the appellant, as prayed
- 4.Matter remitted to the Employment and Labour Relations Court (other than Wasilwa, J) for determination and assessment of damages
- 5.Appellant awarded costs of the appeal and at trial
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court at Nairobi
- Cause No. 1363 of 2014
- Jurisdiction invoked
- First appeal to the Court of Appeal against the judgment of the Employment and Labour Relations Court
Relief refused
#Assessment of damages by this Court
Justice is better served for both parties if assessment is left to a trial court so that any dissatisfied party can exercise the right of appeal
Costs
The appellant shall get costs for the appeal and at trial.
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.
In circumstances such as those, the employer will be required to provide some evidence and proof of the contract of service after which the burden shifts to the employee to disprove it.
Having failed to do so, then what Buku told Court needed to be believed. Our own assessment of the evidence leads us to a difierent outcome from that reached by the trial court.
a trial court is duty bound to return an opinion on damages even where liability is not proved.
We order that, as prayed, the respondent do issue a certificate of employment to the appellant. Further, we remit the matter back to the Employment and Labour Relations Court (other than Wasilwa, J), for determination and assessment of damages.
The appellant shall also get costs for the appeal and at trial.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Sang v Lagat & 2 others (Environment and Land Case E013 of 2024) [2026] KEELC 2245 (KLR)[2026] KEELC 2245 (KLR)22 Apr 2026
- Jovet (Kenya) Limited v Bavaria NV[2025] KESC 27 (KLR)16 May 2025
Cite this brief
#Cite this brief
Caselaw, "Buku v Sagar Builders Limited (Civil Appeal 360 of 2018) [2024] KECA 526 (KLR)", Case Analysis (2024). Nairobi Civil Appeal (Employment) – memorandum of appeal dated 24th September 2018, appeal from ELRC Cause No. 1363 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/526/eng@2024-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.