Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedE048 of 2023· [2024] KEELRC 2476 (KLR)

Adika v Security 24 Limited & another (Appeal E048 of 2023) [2024] KEELRC 2476 (KLR)

Employment and Labour Relations Court
11 October 2024
2,378 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

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

#
This is a first appeal from a Magistrate's Court judgment of 25th July 2023 which dismissed the Appellant's claim for unfair termination and terminal dues for failure to establish an employment relationship, the claim having proceeded to formal proof undefended. An earlier judgment of this Court delivered on 24th January 2024 was set aside on 27th June 2024 after the Respondents successfully applied to set it aside on grounds of lack of awareness of the appeal, and fresh submissions were filed. C. N. Baari, J framed two issues: whether the Appellant was employed by the Respondents, and whether he was entitled to the prayers in the Memorandum of Claim. The Court held that the occurrence book produced in evidence linking the Appellant to the Respondents was uncontroverted, shifting the evidential burden to the Respondents, who failed to impugn its credibility. Sections 9(1)(b) and 10(7) of the Employment Act place the obligation to document employment and disprove its terms on the employer. The authorities relied on by the Respondents were distinguished as involving no comparable documentary evidence. The Court found the Appellant was unlawfully terminated contrary to Sections 35(1)(c) and 41 of the Employment Act and set aside the trial court's judgment, awarding a declaration of unfair termination, two months' salary as damages computed at the minimum wage of Kshs 16,959/=, pay in lieu of notice, underpayments of Kshs 209,762/=, overtime of Kshs 570,082/=, unpaid leave of Kshs 58,508/=, and a certificate of service within 7 days. House allowance and rest days claims were declined. Costs of the appeal and the claim were awarded to the Appellant.

Key legal issues

#
01

Whether an employment relationship existed despite absence of an employment letter, termination letter or payslips

Holding

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.

Reasoning

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.

p. 5
02

Whether the termination was unfair and what remedies flow

Holding

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.

Reasoning

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.

p. 5

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. 1.The judgment of the trial court is set aside and substituted with a declaration that the Appellant's termination is unfair
  2. 2.Damages for unlawful termination at Kshs 33,918/=
  3. 3.Pay in lieu of notice Kshs 16,959/=
  4. 4.Underpayments Kshs 209,762/=
  5. 5.Overtime Kshs 570,082
  6. 6.Unpaid leave Kshs 58,508/=
  7. 7.The Appellant be issued with a certificate of service within 7 days
  8. 8.The costs of the appeal and the claim before the trial court shall be borne by the Respondent

Authorities

#

Legislation

  • Employment ActSection 9(1)(b), 9(2), 10, 10(7), 35(1)(c), 41, 49(4), 51
  • Civil Procedure ActSection 27

Cases cited (8)

  • Joseph Omollo v Board of Management Kisumu Boys High School
    [2016] eKLR
  • Transport Workers Union v Euro Petroleum Products and Another
    (2019) eKLR
  • Joseph Munene Murage v Salome Ndungu
    (2019) eKLR
  • Casmir Nyakundi Nyaberi v Mwakikar Agencies Limited
    (2016) eKLR
  • Supermarine Handling Services Ltd v Kenya Revenue Authority
    [2010] eKLR
  • Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR
  • Ramji Ratna and Company Limited v Wood Products (Kenya) Limited
    Civil Appeal No. 117 of 2001
  • Raila Amolo Odinga & Another vs. IEBC & 2 Others
    Presidential Election Petition No. 1 of 2017 (2017) eKLR
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.