Odera v Board of Management St Mary’s Awasi Catholic Mission Hospital (Appeal E037 of 2025) [2025] KEELRC 2930 (KLR)
The bottom line
#A Kenyan nurse who claimed unfair dismissal won only her unpaid salaries because she could not prove her contract continued after it expired.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant's employment subsisted after 31st December 2023
No - the written contract was renewed only once, lapsing on 31st December 2023, and no evidence of a further renewal was adduced
The appellant produced the original contract of 10th June 2022 and a renewal letter dated 1st January 2023 running to 31st December 2023. No further written contract was provided; the Mpesa transactions were unconfirmed, involved unidentified persons, and were not referenced in her witness statement. Neither the demand letter nor the witness statement explained how or when the contract was extended after 31st December 2023.
Whether unfair termination of employment was proved
No - the appellant failed to discharge her burden under Section 47(5) of the Employment Act
The appellant gave no evidence of events on 13th February 2024 - her presence at the workplace, how Sister Victoria Orwa effected the termination, whether she appealed or returned to collect dues. Section 47(5) places the burden of proving unfair termination on the employee, and this burden does not lighten because the employer did not appear. The allegation of unfair termination lacked supportive oral or documentary evidence.
Whether the trial court failed to consider the appellant's submissions
No - the trial judgment expressly stated that submissions were considered
Paragraph 6 of the trial judgment stated that the magistrate had carefully considered the submissions and did not need to reproduce them. Further, following Daniel Toroitich Arap Moi V Mwangi Stephen Muriithi, submissions do not constitute evidence and many cases are decided without hearing submissions, so the trial court did not fall into error.
Which salary arrears were recoverable
Only Kshs.78,000 being unpaid salary for June, November and December 2023, before the contract lapsed
The appellant was in the respondent's employment when the arrears accrued up to December 2023 and particulars and amounts were availed, making those sums recoverable. Amounts claimed for January and February 2024 were not recoverable because employment did not subsist after 31st December 2023.
Legal principles established
#- The burden of proving unfair termination rests on the employee, who must discharge the initial evidentiary burden before it shifts to the employer
- The burden of proof on the employee does not lessen merely because the employer does not defend the claim
- A bare statement that unfair termination occurred is not sufficient evidence of termination or of its unfairness
- Submissions do not constitute evidence and cannot take the place of evidence
Court orders
#- 1.The decision of the trial court is interfered with to the extent that the appellant is awarded the sum of Kshs.78,000 as unpaid salaries
- 2.The directions of the trial court on the Certificate of Service and KRA P9 Form are upheld
- 3.There shall be no orders as to costs
- On appeal from
- Magistrates' Court (ELRC), Nyando
- MCELRC No. E005 of 2025
- Jurisdiction invoked
- First appellate jurisdiction over the magistrates' court in employment and labour relations matters
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odera v Board of Management St Mary’s Awasi Catholic Mission Hospital (Appeal E037 of 2025) [2025] KEELRC 2930 (KLR)", Case Analysis (2025). ELRC Appeal (from MCELRC No. E005 of 2025), Kisumu. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2930/eng@2025-10-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.