Amuiri Investment v Aswani (Employment and Labour Relations Appeal E092 of 2021) [2025] KEELRC 1440 (KLR)
The bottom line
#A Kenyan employment appeal cut a former caretaker's award from nearly KES 1.2 million to KES 234,613.85, showing employers win when they keep records and employees lose when they never raise grievances in writing.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial court erred in awarding payment in lieu of leave days not taken
The award was set aside; the uncontradicted and un-discredited oral evidence of RW1 corroborated by RW2 that the Claimant took three weeks' leave every December was sufficient to discharge the employer's burden of rebuttal under sections 107 and 108 of the Evidence Act.
The trial court relied solely on the absence of documentary evidence without making any finding on the credibility of RW1 and RW2, who testified that the Respondent went on leave every December and was relieved by RW2. The appellate court held that oral evidence not discredited was sufficient to rebut the claim, and that the Respondent failed to explain why leave would be denied for three years after ten years of consistently taking leave.
Whether the award for unpaid public holidays was justified
Upheld; the Appellant, having failed to keep records, did not discharge its burden of rebuttal under section 10(7) of the Employment Act, and the claim was a continuous injury not time barred under section 90.
RW1 testified in rebuttal of the claim for 22 unpaid public holidays without offering any oral or documentary evidence. Because the employer failed to keep records as required by the Employment Act, the statutory burden of disproving the claim remained on it. The court also found the claim was a continuing injury exempt from the section 90 limitation period.
Whether the claims for underpayment (caretaker vs cleaner) and house allowance were proved
Set aside; the Respondent failed to discharge the primary onus under sections 107 and 108 of the Evidence Act, having made no documented claim during the 10-year employment regarding his status or the consolidation of his salary.
The trial court again relied only on the employer's failure to produce a contract. The appellate court held the employee was also obliged to show he had raised the status of his employment and the consolidation of his salary during the employment. The inconsistency of claiming underpayment from 2015 but house allowance only from 2016, while not disputing the salary history given by RW1, undermined the claims.
Whether the award of service pay was justified
Upheld; the employer adduced no evidence of NSSF, pension or provident fund contributions and did not testify on the issue, so failed to rebut the claim under section 35(5) as read with 35(6) of the Employment Act.
Service pay arises either by contract or upon demonstration that the employer did not provide social security or pension. The onus of demonstrating compliance with section 35 lies on the employer by producing pay slips or NSSF/pension statements. The Appellant did not testify at all on this, completely failing to rebut the claim, and the trial magistrate's award of Kshs. 177,853.85 was upheld.
Legal principles established
#- On a first appeal the court must re-evaluate, re-assess and re-analyze the evidence on the record and determine whether the conclusions reached by the trial court should stand, giving reasons either way.
- Where an employer fails to keep records required under sections 10(7) and 74 of the Employment Act, the burden of proving or disproving the alleged term of employment falls on the employer.
- Trial court findings on claims not subjected to a cross-appeal are not in issue and will not be disturbed.
- Service pay is payable either under the contract or where the employer did not provide social security or pension, under section 35(5) as read with 35(6) of the Employment Act; an employer who does not testify on this completely fails to rebut the claim.
Court orders
#- 1.Upheld the award of Kshs. 56,760.00 for unpaid public holidays
- 2.Upheld the award of Kshs. 177,853.85 as service pay
- 3.Provision of certificate of service
- 4.Total award of Kshs. 234,613.85
- 5.Interest at court rates from the date of judgment of the trial court on 19/8/2021 till payment in full
- 6.Costs of the suit
- 7.Set aside the judgment of the trial court in respect of the other awards (leave days not taken, underpayment and house allowance)
- On appeal from
- Milimani Commercial Court, Nairobi (Chief Magistrate's Court)
- not stated
- Jurisdiction invoked
- First appeal from the trial magistrate's court (the judgment does not cite a specific constitutional or statutory jurisdictional provision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amuiri Investment v Aswani (Employment and Labour Relations Appeal E092 of 2021) [2025] KEELRC 1440 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1440/eng@2025-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.