Endmor Steel Miller Limited v Shikanda (Appeal E053 of 2021) [2023] KEELRC 1018 (KLR)
The bottom line
#A Kenyan employer lost its appeal because it couldn't produce records proving an employee resigned — if you allege resignation, you must prove it with documents.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether section 45(3) of the Employment Act barred the Respondent's claim for unfair termination given he had worked less than thirteen months
- 2.Whether the Respondent voluntarily resigned or was constructively/unfairly dismissed
- 3.Whether the Trial Court erred in awarding notice pay and unpaid salary for October 2018
Key legal issues
#Applicability of section 45(3) of the Employment Act to an employee who worked less than 13 months
Section 45(3) stood suspended following the High Court's declaration of unconstitutionality in Samwel G. Momanyi v Attorney General, so the Respondent was entitled to bring an unfair termination claim despite working less than 13 months
The Court noted the High Court decision in Samwel G. Momanyi (supra) declaring section 45(3) unconstitutional. No appeal against that decision was brought to the Court's attention, so the provision's applicability stands suspended. Consequently, the length-of-service limitation did not bar the Respondent's claim.
Voluntary resignation versus constructive/unfair dismissal
The Appellant failed to prove voluntary resignation; the Trial Court was right to find constructive dismissal proved on a balance of probability
The Respondent testified he was verbally terminated without notice. The Appellant's witness relied only on hearsay from unnamed 'witnesses' and produced no documentary evidence of resignation, nor the Mpesa records of payment of dues. The employer's failure to adduce such evidence meant the allegation of resignation could not stand, and the finding of unlawful termination was proper.
Awards of notice pay and unpaid salary
The Trial Magistrate did not err in awarding unpaid salary and salary in lieu of notice since the Appellant failed to produce employment records
Under section 74 of the Employment Act the employer must keep employment records to enable the court to assess the employment relationship. The Appellant failed to provide records of payment or resignation, so the Trial Magistrate was justified in believing the Respondent's evidence and in making the awards of unpaid salary and notice pay.
Legal principles established
#- It is the duty of the employer to keep employment records that would help the court assess the employment relationship; failure to produce such records allows the court to believe the employee's evidence
- He who alleges must prove; the evidential burden lies on the party alleging a fact
Court orders
#- 1.The appeal is found without merit and is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Mavoko
- Mavoko CMEL No. 1 of 2019
- Jurisdiction invoked
- First appeal under the Employment and Labour Relations Court Act (first appellate court re-evaluating evidence of the trial court)
Relief refused
#Setting aside of the Trial Court's judgment
The Court found no error in the Trial Magistrate's findings; the Appellant failed to prove voluntary resignation and payment of dues
Costs
Appeal dismissed with costs to the Respondent
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.
It is my opinion that the Appellant failed to prove to the Court that the Respondent had voluntarily resigned and that it had duly paid his dues.
Pursuant to section 74 of the Employment Act, it is the duty of the employer is to keep employment records that would help the court assess the employment relationship between the parties in such a suit.
Since the Court is not aware of any appeal arising out of the aforementioned decision, applicability of section 45(3) of the Employment Act stands suspended.
The appeal herein is therefore found without merit and is hereby dismissed with costs.
Issues in the judgment
#The appeal grounds state the claimant had 'not worked for over 11 months' while the Appellant's submissions and the issue framed by the Court refer to 13 months under section 45(3)
The judgment records the Trial Court finding constructive dismissal, though the Respondent's own submissions before this Court state he pleaded verbal dismissal rather than constructive dismissal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Endmor Steel Miller Limited v Shikanda (Appeal E053 of 2021) [2023] KEELRC 1018 (KLR)", Case Analysis (2023). ELRC Appeal (Nairobi) — Appeal against Mavoko CMEL No. 1 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1018/eng@2023-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.