Adika v Security 24 Limited & another (Appeal E048 of 2023) [2024] KEELRC 2476 (KLR)
The bottom line
#Kenya's Employment Court confirmed that an occurrence book alone can prove employment, shifting the burden onto employers who keep no written contracts.
What this practically means
#Executive summary
#Key legal issues
#Whether an employment relationship existed despite absence of an employment letter, termination letter or payslips
Yes. The occurrence book produced in evidence was uncontroverted, shifting the onus to the Respondents to disprove it; the magistrate erred in finding no employment relationship.
The Appellant's evidence, including an occurrence book extract linking him to the Respondents, was uncontroverted. Once that documentary evidence was produced, the evidential burden shifted to the Respondents to rebut it, and they woefully failed to impugn its credibility. Section 9(1)(b) and 10(7) of the Employment Act place the duty of documenting employment and disproving terms on the employer. The authorities relied on by the Respondents were distinguishable as none involved comparable documentary evidence.
Whether the termination was unfair and what remedies flow
Termination without reason, notice or disciplinary hearing was unlawful contrary to Sections 35(1)(c) and 41 of the Employment Act; compensation of two months' salary computed at the minimum wage of Kshs 16,959/= was awarded.
The Appellant's testimony that he was terminated in December 2022 without reason, notice or a disciplinary hearing remained uncontroverted. Applying Section 49(4) factors, the two years of service justified the equivalent of two months' salary. Pay in lieu of notice, underpayments, unpaid leave and overtime were awarded as uncontroverted or proven by the wages order, but house allowance and rest days claims failed.
Legal principles established
#- Where an employer fails to reduce an employment contract into writing, the burden shifts to the employer to disprove the terms of employment.
- The evidential burden shifts once a party adduces sufficient evidence that is not controverted.
- Role of a first appellate court in re-evaluating evidence.
Court orders
#- 1.The judgment of the trial court is set aside and substituted with a declaration that the Appellant's termination is unfair
- 2.Damages for unlawful termination at Kshs 33,918/=
- 3.Pay in lieu of notice Kshs 16,959/=
- 4.Underpayments Kshs 209,762/=
- 5.Overtime Kshs 570,082
- 6.Unpaid leave Kshs 58,508/=
- 7.The Appellant be issued with a certificate of service within 7 days
- 8.The costs of the appeal and the claim before the trial court shall be borne by the Respondent
- On appeal from
- Magistrate's Court
- Jurisdiction invoked
- First appellate jurisdiction over the Magistrate's Court (Employment and Labour Relations Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Adika v Security 24 Limited & another (Appeal E048 of 2023) [2024] KEELRC 2476 (KLR)", Case Analysis (2024). E048 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2476/eng@2024-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.