Ongayo v Everflora Limited (Employment and Labour Relations Appeal 068 of 2023) [2025] KEELRC 242 (KLR)
The bottom line
#A Kenyan worker who claimed he was fired lost his appeal because evidence showed he was never actually dismissed, though he must get his certificate of service.
What this practically means
#Executive summary
#Key legal issues
#When was the Appellant terminated from employment?
The employment of the Appellant had not been terminated as at the time he filed the suit on 7th April 2022; the court upheld the trial court's finding that the employment was not terminated.
The court found the minutes of the meeting of 18th November 2021 showed the appellant was present and signed, agreeing to resume duty on 19th November 2021, and the show cause letter dated 30th November 2021 was received and answered by a request for unpaid leave. The appellant admitted receiving notice dated 10th May 2022 to vacate the employer's house. The court found it unbelievable that the respondent would allow the appellant to keep living in its house if it had terminated his services on 1st December 2021 as alleged.
Was the Appellant unlawfully and unfairly terminated?
The issue was moot because the court had upheld the finding that the employment was not terminated.
Having upheld the trial court's finding that the employment had not been terminated by the time of filing suit, the court held that the question whether the termination was unlawful or unfair did not arise for determination.
Whether the Appellant was entitled to the reliefs sought (salary, notice, underpayments, leave, overtime, holidays, rest days)
All monetary reliefs failed; the claims were either not proved, not pleaded in evidence, or defeated by the applicable agricultural wages order; only the certificate of service was awarded.
The November salary claim was not proved as the response of a 6-day deduction was unrebutted. Notice pay could not apply absent termination. The agricultural industry wages order applied and the difference between Kshs. 7,500 with housing and the statutory minimum of Kshs. 7,544.65 was negligible. Leave was taken as unpaid leave. Overtime, public holiday and rest day claims were not in the witness statement and were not proved.
Legal principles established
#- A first appellate court must re-evaluate, re-assess and re-analyze the evidence on the record and determine whether the conclusions reached by the trial court are to stand, giving reasons either way.
- Under section 47(5) of the Employment Act the burden of proving unfair termination or wrongful dismissal rests on the employee, while the burden of justifying the grounds for termination rests on the employer.
- An employer relying on desertion of duty must show efforts were made to get in touch with the deserted employee and must issue reasonable notice that termination is being considered.
- A certificate of service must issue unconditionally under section 51 of the Employment Act.
Court orders
#- 1.Appeal dismissed as without merit save that a certificate of service shall issue unconditionally to the Appellant under Section 51 of the Employment Act
- 2.No order as to costs in the appeal
- On appeal from
- Senior Resident Magistrate's Court, Thika
- Thika MCERLC No. E012 of 2022
- Jurisdiction invoked
- First appeal from the subordinate court in employment and labour relations matters (ELRC jurisdiction over appeals from magistrates' courts in labour disputes)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya Union of Commercial and Food Allied Workers v Sai Electrical and Hardware Limited (Employment and Labour Relations Cause E020 of 2022) [2025] KEELRC 1760 (KLR)[2025] KEELRC 1760 (KLR)13 Jun 2025applied
Cite this brief
#Cite this brief
Caselaw, "Ongayo v Everflora Limited (Employment and Labour Relations Appeal 068 of 2023) [2025] KEELRC 242 (KLR)", Case Analysis (2025). Thika MCERLC Appeal No. E012 of 2022 (memorandum of appeal dated 9th May 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/242/eng@2025-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.