Smart Jobs Limited v Kemboi (Appeal E151 of 2024) [2025] KEELRC 2364 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Burden of proof in unfair termination complaints where the employer calls no evidence
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.
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.
Reliefs awarded by the trial court
The trial Magistrate's award of reliefs was not disturbed, the Appellant having failed to controvert the Respondent's entitlement.
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.
Legal principles established
#- 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
#- 1.The Appellant's appeal is dismissed
- 2.Costs of the appeal awarded to the Respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.