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ELRCDismissedNot stated in the judgment as provided· [2025] KEELRC 2094 (KLR)

Sieberi & another v Board of Management St Mary Academy (Employment and Labour Relations Appeal E007 of 2023) [2025] KEELRC 2094 (KLR)

Employment and Labour Relations Court
25 June 2025
1,563 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that employees claiming unfair dismissal must prove it first, and employers need not chase workers who stop showing up.

What this practically means

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Executive summary

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This is a first appeal from a magistrate's court judgment of 31st January 2023 dismissing the Appellants' claim for wrongful termination of employment. The Appellants, former drivers engaged by the Respondent school, alleged they were verbally dismissed without notice or disciplinary hearing when they reported back after the August 2018 school holidays; the Respondent contended they were on term-by-term fixed-term contracts and absconded duty. The Appellants relied on payslips and NSSF records evidencing three years of continuous employment, while the Respondent produced undated, unsigned temporary contracts. The appeal condensed seven grounds into three issues: proof of wrongful termination, terminal benefits, and consistency with law and evidence. The court held that the Appellants bore the initial burden of establishing a prima facie case of termination, which they failed to discharge; the Respondent's abscondment narrative was therefore preferred on a balance of probabilities. The court rejected the Appellants' reliance on Boniface Francis Mwangi v B.O.M Iyego Secondary School, holding that an employer is no longer required to trace absconding employees to afford them due process under sections 41 and 42 of the Employment Act. Although the Respondent's fixed-term contracts were found deficient under section 10(7), the court did not rest on that finding. The appeal was not allowed; each party was ordered to bear its own costs. Judgment delivered on 25th June 2025 by D. K. Njagi Marete, Judge.

Key legal issues

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01

Proof of wrongful termination

Holding

The appeal fails because the Appellants did not establish a prima facie case of wrongful termination; the Respondent's account of abscondment was preferred on a balance of probabilities, affirming the trial court

Reasoning

The court held that the Appellants bore the initial burden of proving termination. Their claim of verbal termination lacked proof for the co-claimant. The Respondent's fixed-term contracts were deficient, but the court did not rest on their credibility; rather, the Appellants simply failed to discharge the burden of proving termination on a balance of probabilities.

p. 3
02

Employer's duty toward absconding employees

Holding

The Respondent was not required to trace the Appellants to afford them procedural due process under sections 41 and 42

Reasoning

The Appellants relied on Boniface Francis Mwangi v B.O.M Iyego Secondary School for the duty to contact absconding employees, and the Respondent admitted no attempts were made. The court rejected this line of authority, holding it is no longer good law or precedent that an employer must seek out recalcitrant employees.

p. 4
03

Validity of the Respondent's fixed-term contracts

Holding

The purported temporary contracts were legally deficient, but this did not determine the appeal

Reasoning

The court found the contracts undated, unsigned and lacking essential terms, violating section 10(7) of the Employment Act. However, it expressly declined to rest its decision on the form of these documents, instead resolving the appeal on the Appellants' failure of proof.

p. 3

Legal principles established

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  • An employer is no longer obliged to seek out employees alleged to have absconded duty in order to afford them due process under sections 41 and 42 of the Employment Act
  • An employee alleging wrongful termination bears the initial burden of establishing a prima facie case before the burden shifts to the employer to justify the termination
  • Written contracts of employment lacking dates, signatures and essential terms are deficient under section 10(7) of the Employment Act

Court orders

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  1. 1.Appeal not dismissed in favour of the Appellants - the trial court's dismissal of the claim stands (order phrased ambiguously as 'I am therefore decline to dismiss the appeal')
  2. 2.Each party to bear their own costs of the appeal

Authorities

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Legislation

  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 42
  • Employment Act, 2007Section 10(7)
  • Employment Act, 2007Section 31
  • Employment Act, 2007Section 35(1)(c)

Cases cited (4)

  • Margaret A. Ochieng versus National Water Conservation and Pipeline Corporation
    [2014] eKLR
  • Omar Ndaro Zuma v Modern Coast Express
    [2019] eKLR
  • Edward W. Obuya v M.M. Shah Academy
    [2016] eKLR
  • Boniface Francis Mwangi v B.O.M Iyego Secondary School
    [2019] eKLR
On appeal from
Magistrates' Court (trial court)
Not stated
Jurisdiction invoked
First appellate jurisdiction over the magistrate's court decision in an employment dispute (provision not expressly cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Sieberi & another v Board of Management St Mary Academy (Employment and Labour Relations Appeal E007 of 2023) [2025] KEELRC 2094 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2094/eng@2025-06-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.