Magongo v Sherman (Employment and Labour Relations Appeal E103 of 2024) [2025] KEELRC 2477 (KLR)
The bottom line
#Kenya's Employment Court ruled that a worker verbally dismissed without explanation was unfairly terminated because employers must prove valid reasons for dismissal.
What this practically means
#Executive summary
#Key legal issues
#Whether the Appellant ceased to be the Respondent's employee upon transfer to Kilima Gardens and whether she was a piece-rate worker
She remained the Respondent's employee under an indefinite arrangement; the trial court's contrary findings were unpleaded and unsupported by evidence
The Respondent never pleaded that the Appellant ceased to be his employee when Kilima Gardens engaged her. Pleadings and witness statements showed Kilima Gardens was a workplace to which she was transferred, not an employer, and no evidence showed it was a legal entity. The piece-work finding contradicted the Respondent's own pleadings and witness statement that she was a term employee paid monthly. Pleadings bind both the parties and the court.
How the separation occurred - verbal dismissal by the Respondent or voluntary resignation by the Appellant
The Appellant was verbally and summarily dismissed by the Respondent; the Respondent's testimony departed from his pleadings as an afterthought
The trial magistrate failed to determine this vital issue. The Appellant was consistent on pivotal issues throughout, while the Respondent and his witness substantially contradicted their pleadings and witness statements at trial without amending them. The court, mindful it neither saw nor heard the witnesses, found the Appellant's account more credible.
Whether the termination was unfair and what reliefs follow
The dismissal was unfair; the Respondent failed to discharge the twin burdens under sections 43 and 45; compensation of five months' gross salary and one month's salary in lieu of notice were awarded; the leave claim failed for want of factual basis
Once the court found the Appellant was dismissed, the employer was bound to prove the reason for termination and its validity and fairness. The Respondent's evidence was not aimed at discharging that burden. Under section 49(1)(c), compensation is discretionary and assessed case by case; the court considered the length of service and that she did not contribute to the separation. Notice under section 36 was never issued, so one month's salary in lieu was due. The leave claim had no pleaded or evidential basis.
Legal principles established
#- A first appellate court re-evaluates the material before the trial court, reaches its own independent findings, and must give reasons when departing from the trial court's conclusions
- Issues for determination flow from the pleadings, and a trial court may only pronounce judgment on issues arising from the pleadings or issues framed by the parties
- The employer bears the legal burden under sections 43 and 45 of the Employment Act to prove the reason for termination and that the reason was valid and fair; failure renders the termination unfair
Court orders
#- 1.The learned trial Magistrate's Judgment is set aside and judgment entered for the Appellant
- 2.A declaration that the termination of the Appellant's employment was at the initiative of the Respondent, and it was unfair
- 3.Compensation for unfair dismissal, five months' gross salary, Kshs. 50,000
- 4.One month's salary in lieu of notice, Kshs. 10,000
- 5.Interest on the awarded sum, from the date of the lower court's Judgment till full payment
- 6.Costs of the suit
- On appeal from
- Principal Magistrate's Court, Mombasa (Employment and Labour Relations)
- MCELRC Case No. 836 of 2021
- Jurisdiction invoked
- First appellate jurisdiction over the Magistrates' Court judgment (Employment and Labour Relations Court); no specific constitutional/statutory provision stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Magongo v Sherman (Employment and Labour Relations Appeal E103 of 2024) [2025] KEELRC 2477 (KLR)", Case Analysis (2025). ELRC Appeal from Mombasa MCELRC Case No. 836 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2477/eng@2025-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.