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ELRCPartially AllowedNot stated in the judgment· [2025] KEELRC 1901 (KLR)

Shihungu v Morrison (Appeal E143 of 2023) [2025] KEELRC 1901 (KLR)

Employment and Labour Relations Court (appellate jurisdiction over the lower court)
25 June 2025
1,246 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a first appeal from a magistrates' court judgment of 10th July 2023 which had dismissed the Appellant's claim for unfair termination, terminal benefits and non-remitted statutory deductions. The Appellant had worked as the Respondent's house help from December 2016 until September 2019, when she was terminated while hospitalized following a severe road accident and a dispute over her medical bill. The Magistrate had held that she failed to prove an employment relationship, citing the absence of a written contract and corroborative evidence. The Appellant appealed, contending that her uncontroverted testimony and M-Pesa payment records proved the relationship; that the Magistrate ignored Section 10(7) of the Employment Act, which places the burden on an employer who produces no records; and that material evidence, including her testimony of termination via WhatsApp, was disregarded without justification. The Respondent did not participate in the proceedings. The court agreed that Sections 7 and 8 of the Employment Act recognize oral contracts, that the demand for corroboration was an impossibly high evidentiary threshold, and that the failure to apply Section 10(7) was a material error of law. Having found the employment relationship proved, the court held that the termination during a medical crisis, without notice, hearing or valid reasons, was per se unfair under Sections 41, 43 and 45 of the Act. The appeal was allowed, the lower court's judgment set aside, and the Appellant awarded Kshs 270,000 (compensation of eight months' salary, notice pay, unpaid leave and service pay) with interest, a Certificate of Service within 30 days, and costs of the claim and the appeal against the Respondent.

Key legal issues

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01

Proof of an oral employment relationship

Holding

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

Reasoning

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.

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02

Burden of proof where employer keeps no records

Holding

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

Reasoning

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.

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03

Unfair termination of employment

Holding

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

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Appeal allowed; judgment of the lower court delivered on 10th July 2023 set aside
  2. 2.8 months' salary as compensation for unfair termination: Kshs 160,000
  3. 3.One month's salary in lieu of notice: Kshs 20,000
  4. 4.Unpaid leave for 3 years: Kshs 60,000
  5. 5.Service pay: Kshs 10,000 x 3 = Kshs 30,000
  6. 6.Total award of Kshs 270,000 to accrue interest at court rates from the date of judgment until payment in full
  7. 7.Respondent to issue a Certificate of Service within 30 days
  8. 8.Costs of the claim and the appeal to be borne by the Respondent

Authorities

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Legislation

  • Employment Act, 2007Section 10(7)
  • Employment Act, 2007Section 7
  • Employment Act, 2007Section 8
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45

Cases cited (3)

  • Robai Musinzi v. Safdar Mohamed Khan
    [2012] eKLR
  • Mary Chemweno v. Kenya Pipeline Company
    [2019] eKLR
  • Alphonse Machanga v. Operation 680 Ltd
    [2013] eKLR
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.