Odhiambo v Board of Management St Mary’s Awasi Catholic Mission Hospital (Appeal E036 of 2025) [2025] KEELRC 2937 (KLR)
The bottom line
#The Employment Court confirmed that employees must prove unfair termination with solid evidence — even when the employer does not show up to defend the case.
What this practically means
#Executive summary
#Key legal issues
#Employment relationship beyond the probationary period
The appellant failed to prove she was an employee after 31st August 2023
The appointment letter alone proved the employment relationship. Beyond the NSSF contribution for June 2023, there was no evidence of confirmation, renewal, or continued service - no bank statements, duty rota, or employment card. The claimant also produced no evidence of following up on unpaid salary arrears, making it difficult to find she worked unpaid from November 2023 to February 2024.
Unfair termination
Termination was not proved; the claim fails
The witness statement was silent on the circumstances of the alleged termination - whether the appellant was on duty, the venue, timing, mode of communication, or her actions afterwards. These omissions reduced the probative value of the unsupported statement. Under Section 47(5) of the Employment Act the employee bears the burden of proving unfair termination, which remains even in an undefended suit.
Failure to consider submissions
The trial court expressly considered the submissions; no error
The trial magistrate stated in her judgment that she considered the submissions without reproducing them. In any event, submissions are not evidence and cases may be decided without them, though they play a significant role in enriching decision-making.
Accrued reliefs
Only a certificate of service was earned; salary arrears and overtime unproven; service pay barred
Having failed to prove continued employment, salary arrears failed. Overtime had no evidential support. NSSF membership disqualified service pay under Section 35(5)(d). Tax matters fall to KRA. However, under Section 51 of the Employment Act the appellant is entitled to a certificate of service.
Legal principles established
#- The burden of proving unfair termination or wrongful dismissal rests on the employee regardless of whether the employer defended the claim
- A mere statement that termination occurred on a particular date is insufficient proof of termination or of its unfairness
- Submissions do not constitute evidence
- In a first appeal the court reconsiders and evaluates the evidence afresh while making due allowance for not having seen or heard the witnesses
Court orders
#- 1.The appeal is dismissed
- 2.No orders as to costs
- On appeal from
- Nyando Magistrates' Court (MCELRC)
- Nyando MCELRC No. E006 of 2024
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court's judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odhiambo v Board of Management St Mary’s Awasi Catholic Mission Hospital (Appeal E036 of 2025) [2025] KEELRC 2937 (KLR)", Case Analysis (2025). Nyando MCELRC No. E006 of 2024 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2937/eng@2025-10-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.