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Court of AppealDismissedNot stated in the judgment· [2025] KECA 88 (KLR)

Josephat Arati Ongera v Gianchore Tea Factory Co. Limited

Court of Appeal
24 January 2025
Mohamed Abdulahi WarsameM. WarsameSKS. Gatembu KairuFOF. Ochieng
2,279 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that employees claiming constructive dismissal must prove termination actually happened before any unfairness claim can succeed.

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 Nakuru against the decision of Marete J. of the Employment and Labour Relations Court dismissing the appellant's claim of unprocedural, unfair and unlawful termination. The appellant, employed by the respondent from 2008, was issued a show cause letter on 11th January 2014 over an alleged intention to steal tea, responded to it, and was placed on three-month suspension with half pay by a letter dated 21st January 2014 pending further investigations. He alleged that when he reported back on 22nd April 2014 he was told to go away until further notice, which never came, and that this indefinite suspension amounted to constructive dismissal. The trial court found no termination proved, holding the claim premature and that the appellant had failed to establish termination on a balance of probability under section 47(5) of the Employment Act. The Court of Appeal, per a single joint judgment of Warsame, Gatembu Kairu and Ochieng, JJA, re-evaluated the evidence as required on a first appeal and held that the appellant failed to discharge the evidential burden of proving the fact of termination: he did not protest or seek clarification, produced no contract or evidence of his earnings, and the only payment evidence was a single half-salary payment. The court held that proof of the fact of termination must precede proof of unfairness, that mere stopping of work does not amount to termination, and that with insufficient proof of termination the suit was premature. The appeal was dismissed and the ELRC decision affirmed, with no order as to costs.

Key legal issues

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01

Burden of proof in claims of unfair termination and constructive dismissal

Holding

The employee who alleges termination bears the burden of proving, first, the fact of termination and second, that it was unfair, under section 47(5) of the Employment Act and sections 107 and 108 of the Evidence Act

Reasoning

The court held that since the appellant contended he was terminated, the burden lay on him to prove the fact of termination and its unfairness. The appellant's evidence - a single half-salary payment and uncorroborated testimony about reporting on 22nd April 2014 - was insufficient. He did not protest, seek clarification, or attempt to resume duties, and did not produce his contract or evidence of his earnings.

p. 4
02

Prematurity of the suit and insufficiency of evidence of termination

Holding

Where proof of termination is insufficient, the suit is prematurely filed; the employer's obligation to justify termination under section 43 is only triggered once a foundation of termination is laid

Reasoning

Having found no sufficient proof that the appellant's services were terminated - whether as to what happened on 22nd April 2014 or when half-salary payment stopped - the court concurred with the trial court that the evidence did not lay the necessary foundation requiring the employer's response under section 43 of the Employment Act, and that the suit was premature.

p. 5
03

Duty of a first appellate court

Holding

The Court of Appeal on a first appeal must re-evaluate and reanalyse the evidence and reach its own conclusions, bearing in mind it did not see or hear the witnesses

Reasoning

The court invoked the decision in Kenya Ports Authority v Kuston (Kenya) Limited to frame its role: to reconsider the evidence, evaluate it itself, draw its own conclusions, rule only on the evidence on record and not introduce extraneous matters not dealt with by the parties.

p. 3

Legal principles established

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  • On a first appeal, the appellate court must re-evaluate, re-assess and reanalyse the evidence on record and draw its own conclusions, while making due allowance for not having seen or heard the witnesses
  • Before a party can prove unlawful termination, evidence must first be led to prove the fact of termination; the burden of proving that an unfair termination occurred rests on the employee
  • Mere cessation of work by an employee does not automatically amount to termination of employment; an employee alleging constructive termination must place tangible evidence before the court

Court orders

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  1. 1.Appeal dismissed for lack of merit
  2. 2.Decision of the Employment and Labour Relations Court affirmed
  3. 3.No order as to the costs of the appeal
On appeal from
Employment and Labour Relations Court
Not stated in the judgment
Jurisdiction invoked
First appeal to the Court of Appeal from the Employment and Labour Relations Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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

Cite this brief

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Cite this brief

Caselaw, "Josephat Arati Ongera v Gianchore Tea Factory Co. Limited", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/88/eng@2025-01-24

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