Ayuma v Omunga (Appeal E220 of 2023) [2025] KEELRC 673 (KLR)
The bottom line
#The Employment Court confirmed that in Kenya, an employee claiming unfair termination must prove it first—demanding and collecting final dues can count as resigning yourself.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the Appellant's employment was fair and lawful
The trial court correctly found the termination fair and lawful; the Appellant failed to discharge her burden under section 47(5) and repudiated her own contract by demanding and reversing her dues and absconding duties
Section 47(5) places the burden of proving unfair termination on the employee. The Appellant took an off day without permission, amounting to absconding and gross misconduct. She demanded her dues, which were tendered but reversed, evidencing an intention not to return. Relying on Pius Machafu Isindu v Lavington Security Guards Limited, the court held that the Appellant failed to lay the foundation requiring the employer to justify the termination, and upheld the trial court's finding of fair and lawful termination. The redundancy claim also failed since the parties continued working despite the April 2018 termination letter.
Whether the trial court erred by disallowing the reliefs sought (notice pay, underpayment, leave pay, service pay, compensation)
The Appellant was not entitled to any of the reliefs: she repudiated her contract, failed to prove underpayment with minimum wage orders, exceeded her leave entitlement, and reversed the offered service pay
Having been fairly terminated, no damages or notice pay were due. Underpayment requires proof of the applicable minimum wage orders, which were not produced. The Respondent's records showed the Appellant had taken 138 leave days against an entitlement of 126. Service pay was offered but reversed by the Appellant, and in any event she did not prove unfair termination entitling her to the reliefs under sections 45 and 49 of the Employment Act.
Legal principles established
#- The duty of the first appellate court is to re-evaluate the evidence on both points of law and facts and come up with its own findings and conclusions, while giving due allowance to the trial court's advantage of seeing and hearing the witnesses
- Under section 47(5) of the Employment Act, the burden of proving unfair termination rests on the employee; only when that foundation is laid does the employer bear the burden of justifying the grounds of termination under section 43
- An employee who demands and collects her dues evidences an intention not to continue in employment and thereby repudiates her own contract
Court orders
#- 1.The Appeal is found without merit and is dismissed with costs
- On appeal from
- Magistrates' Court (CMELRC)
- CMELRC No. 160 of 2019
- Jurisdiction invoked
- First appellate jurisdiction over CMELRC matters; judgment rendered by the Presiding Judge-Appeals Division
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.
- Greatlaes Trans (K) Limited v Robert Mackoy Limited (Appeal E081 of 2025) [2025] KEELRC 2663 (KLR)[2025] KEELRC 2663 (KLR)2 Oct 2025applied
Cite this brief
#Cite this brief
Caselaw, "Ayuma v Omunga (Appeal E220 of 2023) [2025] KEELRC 673 (KLR)", Case Analysis (2025). Not stated in the judgment (Memorandum of Appeal dated 31st October 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/673/eng@2025-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.