Shihungu v Morrison (Appeal E143 of 2023) [2025] KEELRC 1901 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Proof of an oral employment relationship
The Appellant discharged her burden of proving the employment relationship through unchallenged testimony and M-Pesa payment records, despite the absence of a written contract
Sections 7 and 8 of the Employment Act recognize oral contracts where essential terms are agreed. The Appellant's testimony on terms (daily wage, hours, probation) was detailed and unchallenged, and M-Pesa statements showing regular payments were unrebutted. The Respondent did not participate or produce contrary evidence, so the lower court's demand for a written contract and corroboration was an impossibly high evidentiary threshold and a material error of law.
Burden of proof where employer keeps no records
The Magistrate erred in law by failing to apply Section 10(7) of the Employment Act, which shifts the burden to the employer where no records are produced
The lower court insisted on corroborative evidence for the entire employment period while the Respondent failed to participate in the proceedings or produce any records. Section 10(7) places the burden of disproving the alleged terms of employment on the employer in such circumstances. The Magistrate's failure to apply this provision was a material error of law that undermined the finding that the Appellant had not proved her employment.
Unfair termination of employment
The termination was unfair: the Appellant was dismissed while hospitalized, without notice or a hearing, following a dispute over her medical bill, and the allegation was unrebutted
Sections 41, 43 and 45 of the Employment Act prescribe notice, a hearing and valid reasons as requirements for fair termination. The Appellant testified she was dismissed while hospitalized following a dispute over her medical bill; this evidence was credible and required rebuttal, which the Respondent, who did not participate, never provided. Termination during a medical crisis without due process constitutes unfair dismissal.
Legal principles established
#- Where an employer fails to produce employment records, Section 10(7) of the Employment Act places the burden on the employer to disprove the alleged terms of employment
- Oral contracts of employment are recognized and enforceable under Sections 7 and 8 of the Employment Act, 2007
- Termination during a medical crisis, without notice, hearing or valid reasons, is per se unfair
Court orders
#- 1.Appeal allowed; judgment of the lower court delivered on 10th July 2023 set aside
- 2.8 months' salary as compensation for unfair termination: Kshs 160,000
- 3.One month's salary in lieu of notice: Kshs 20,000
- 4.Unpaid leave for 3 years: Kshs 60,000
- 5.Service pay: Kshs 10,000 x 3 = Kshs 30,000
- 6.Total award of Kshs 270,000 to accrue interest at court rates from the date of judgment until payment in full
- 7.Respondent to issue a Certificate of Service within 30 days
- 8.Costs of the claim and the appeal to be borne by the Respondent
- On appeal from
- Lower court (Magistrates' Court)
- Not stated in the judgment
- Jurisdiction invoked
- First appellate jurisdiction over the lower court's judgment (no specific constitutional/statutory provision stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shihungu v Morrison (Appeal E143 of 2023) [2025] KEELRC 1901 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1901/eng@2025-06-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.