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ELRCDismissedAppeal No E151 of 2024· [2025] KEELRC 2364 (KLR)

Smart Jobs Limited v Kemboi (Appeal E151 of 2024) [2025] KEELRC 2364 (KLR)

Employment and Labour Relations Court
31 July 2025
2,325 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An employer who shows up to court but calls no witnesses will almost certainly lose an unfair termination case in Kenya.

What this practically means

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Executive summary

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The Employment and Labour Relations Court (Ocharo Kebira, J) dismissed an appeal against a Principal Magistrate's judgment in an employment cause. The Respondent, orally employed as a heavy commercial driver from 6th April 2021, claimed his employment was verbally terminated on 2nd September 2022 after he declined to sign a letter admitting liability and consenting to a salary deduction over an accident. The trial Magistrate found the termination substantively and procedurally unfair and awarded the Respondent a cumulative Kshs. 571,205.20, comprising compensation for unfair termination, one month's notice pay, leave earned but unutilized, unpaid house allowance, holidays worked and overtime. The Appellant, which filed a Response but called no witness at trial, appealed on grounds including misdirection on the burden of proof and awards absent termination. The Court reiterated the role of a first appellate court to re-evaluate evidence and reach its own conclusions. It held that while a respondent's failure to adduce evidence does not obviate the claimant's statutory burden under sections 107 and 109 of the Evidence Act, the Respondent had discharged his initial burden under section 47(5) of the Employment Act by demonstrating procedural unfairness and an absence of a fair and valid reason. The burden then shifted to the Appellant, who, having adduced no evidence, failed to justify the termination. The Court found no compelling reason to disturb the reliefs awarded and dismissed the appeal with costs.

Key legal issues

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01

Burden of proof in unfair termination complaints where the employer calls no evidence

Holding

The trial Magistrate did not err. The claimant discharged his initial burden of demonstrating procedural unfairness; the employer, having adduced no evidence, failed to justify the termination.

Reasoning

Section 47(5) of the Employment Act imposes a two-stage legal burden: the employee must first present prima facie evidence of unfair termination, after which the burden shifts to the employer to justify the termination under sections 41, 43 and 45. The Respondent's evidence showed he was not notified of accusations or allowed to defend himself, and the reason for dismissal was not fair and valid. With no evidence from the Appellant, there was no other reasonable conclusion than that the Appellant failed to discharge its burden.

p. 5
02

Reliefs awarded by the trial court

Holding

The trial Magistrate's award of reliefs was not disturbed, the Appellant having failed to controvert the Respondent's entitlement.

Reasoning

Having reviewed the Respondent's pleadings and evidence before the trial court, the trial Magistrate's analysis, and in the context of the Appellant's failure to adduce evidence contradicting the Respondent's entitlement, the Court found no compelling reason to interfere with the awards, including compensation for unfair termination, notice pay, leave, house allowance, holidays worked and overtime.

p. 5

Legal principles established

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  • Where a respondent files a statement of response but fails to adduce evidence in support of its pleadings, those pleadings remain mere statements with no evidential value, and the failure does not obviate the claimant's statutory burden of proof.
  • Under Section 47(5) of the Employment Act, the employee bears the burden of proving that unfair termination occurred; once discharged, the burden shifts to the employer to justify the termination under sections 41, 43 and 45.
  • A first appellate court must subject the evidence before the trial court to fresh scrutiny and come to its own independent findings and conclusions.

Court orders

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  1. 1.The Appellant's appeal is dismissed
  2. 2.Costs of the appeal awarded to the Respondent

Authorities

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Legislation

  • Evidence ActSections 107, 109
  • Employment Act, 2007Sections 41, 43, 45, 45(7), 47(5)

Cases cited (7)

  • Selle -vs- Associated Motor Boat Co.
    [1968] EA 123
  • Abdul Hameed Saif v Ali Mohamed Sholan
    (1955), 22 EACA. 270
  • German School Society & another v Ohany & another
    (Civil Appeal 325 & 342 of 2018 (Consolidated) [2023] KECA 894 (KLR) (24 July 2023)
  • Kenya Ports Authority v Kuston (Kenya) Limited
    (2009) 2EA 212
  • GAS Kenya Limited v Amber Enterprises Ltd
    [2020] eKLR
  • Trust Bank Limited v Paramount Universal Bank Limited & 2 others
    Nairobi [Milimani] HCCS No. 1243 of 2001
  • Kenfreight [E.A] Limited v Benson K. Nguti
    [2019] eKLR
On appeal from
Principal Magistrate's Court (ELRC subordinate court)
Jurisdiction invoked
First appellate jurisdiction over an appeal from the Principal Magistrate's judgment in an employment cause

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, "Smart Jobs Limited v Kemboi (Appeal E151 of 2024) [2025] KEELRC 2364 (KLR)", Case Analysis (2025). Appeal No E151 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2364/eng@2025-07-31

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