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ELRCDismissedNot stated in judgment· [2025] KEELRC 2399 (KLR)

Kenya Union of Pre-Primary Education Teachers v Gateway to Learning Center (Appeal E002 of 2023) [2025] KEELRC 2399 (KLR)

Employment and Labour Relations Court
29 August 2025
JRJames Rika
1,452 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-instance appellate judgment of the Employment and Labour Relations Court at Kericho, dismissing an appeal against a Trial Court judgment dated 4th April 2023 that had dismissed a claim filed by a trade union on behalf of its member, Irene Chepwagen, a former teacher alleging unfair and unlawful dismissal. The Appellant advanced seven grounds of appeal, including that the Trial Court erred in finding resignation rather than termination, in disregarding the claim of employment from 2012, in rejecting the sick leave assertion, and in failing to consider salary, leave and abscondment issues. The appeal was considered on the strength of the Record, with submissions from both parties. The court held that the Appellant, having opted not to present the Grievant as a witness at trial, could not complain about the treatment of evidence; while the E&LRC Procedure Rules permit determination on pleadings and documents, contested contract details require the member's oral testimony. On the merits, the court found the Grievant was absent without authorisation for a month, declined to attribute unilateral termination to the Respondent given the collapse of trust and confidence warranting mutual separation, found no documentation of employment from 2012 or of sick leave compliance under Section 30 of the Employment Act, and found the remaining grounds devoid of merit. The appeal was declined with costs to the Respondent.

Key legal issues

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01

Whether determination on pleadings and documents was proper

Holding

While the E&LRC Rules allow determination on pleadings, affidavits, documents and submissions, not all disputes suit this mode; a Grievant whose contract details are contested must testify

Reasoning

The court held that the Rules permitting documents-based determination do not displace the need for oral evidence where contract terms and circumstances of exit are disputed. The Union was not party to the Grievant's contract and could not establish employment history, termination circumstances, leave and salary claims without her testimony. Evidential gaps were of the Appellant's own making.

p. 2
02

Termination or resignation

Holding

The Trial Court did not err in not attributing termination to the Respondent; the employment relationship had collapsed and mutual separation was warranted

Reasoning

The Grievant was absent without authorisation from 3rd August to 3rd September 2020, was given options (termination letter, resignation letter, or leave) and did not take any, only requesting time to consult her Advocate. The Respondent thereafter treated her contract as terminated. With serial warnings and collapsed trust, the Trial Court correctly declined to find unilateral termination by the Respondent.

p. 3
03

Employment from 2012 and sick leave claims

Holding

No document or oral evidence showed employment from 2012; no medical document established sick leave under Section 30 of the Employment Act

Reasoning

The Grievant alleged employment from 2012 while the Respondent said she was a volunteer on a stipend. No letter of employment or other document was exhibited. On sick leave, the list of documents contained no medical certificate, and the Grievant did not notify the Respondent as required by Section 30 of the Employment Act. The Trial Court did not err on either finding.

p. 3

Legal principles established

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  • Where a Trade Union brings a claim on behalf of a member and the details of the member's contract of employment are contested, the member ought to be availed as a witness; a claim cannot be established on pleadings, documents and submissions alone in such circumstances
  • A party that opts not to call witnesses cannot later complain that the court disregarded evidence or failed to establish its claim

Court orders

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  1. 1.The Appeal is declined.
  2. 2.Costs to the Respondent.
On appeal from
Employment and Labour Relations Court (Trial Court)
Jurisdiction invoked
Appellate jurisdiction under the Employment and Labour Relations Court (Procedure) Rules; appeal delivered pursuant to Rule 68(5) of the E&LRC (Procedure) Rules, 2024

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, "Kenya Union of Pre-Primary Education Teachers v Gateway to Learning Center (Appeal E002 of 2023) [2025] KEELRC 2399 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2399/eng@2025-08-29

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