Ekhuya & 2 others v Golden Sport Bar & Restaurant (Employment and Labour Relations Appeal E063 of 2019) [2023] KEELRC 377 (KLR)
The bottom line
#The Employment and Labour Relations Court dismissed the workers' appeal because they could not prove they were ever employees of the respondent.
What this practically means
#Executive summary
#Key legal issues
#Existence of an employment relationship
Not established. The appellants produced only letters from the Ministry of Labour, which was insufficient; the 1st appellant failed to produce bank payment records he mentioned; they could have sought a Notice to Produce or called corroborating witnesses but did not.
Relying on Sections 107 and 108 of the Evidence Act, the court held that the party alleging an employment relationship must prove it. The respondent's failure to call evidence did not shift the burden. The letters from the Ministry of Labour were insufficient, and the appellants failed to avail other available means of proof such as a Notice to Produce under sections 68(a) and 69 of the Evidence Act or corroborating oral testimony.
Unfair and unlawful termination and remedies
Not determined, as it was contingent on proof of the employment relationship.
Having found that the foundational fact of an employment relationship was not proved, the court held that the remaining issues — unfair termination and entitlement to remedies — could not logically be determined and fell away.
Duty of a first appellate court
The court has a duty to re-evaluate the evidence and judgment of the trial court and draw its own conclusions, while mindful it did not see or hear the witnesses.
The court restated the established principle, citing Abok James Odera t/a AJ Odera & Associates v John Patrick Machira t/a Machira & Co Advocates, that a first appellate court must re-evaluate, reassess and reanalyse the record and determine whether the trial court's conclusions should stand, giving reasons either way.
Legal principles established
#- The party who alleges an employment relationship bears the burden of proving it, and that burden does not shift merely because the respondent does not adduce evidence
- An employer's statutory record-keeping obligations under sections 10 and 74 of the Employment Act arise only where the employment relationship is undisputed or already established
- A claimant who believes the employer holds supportive documents is obligated to serve a notice to produce rather than rely on the absence of records
Court orders
#- 1.The Appeal is dismissed with no orders as to costs
- On appeal from
- Chief Magistrate's Court at Milimani (as CMEL Cause)
- CMEL Cause No 173 of 2018
- Jurisdiction invoked
- First appellate jurisdiction over CMEL Cause No 173 of 2018 (Employment and Labour Relations Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ekhuya & 2 others v Golden Sport Bar & Restaurant (Employment and Labour Relations Appeal E063 of 2019) [2023] KEELRC 377 (KLR)", Case Analysis (2023). Appeal from CMEL Cause No 173 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/377/eng@2023-02-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.