Akamah v Board of Management Awasi Catholic Mission Hospital (Appeal E035 of 2025) [2025] KEELRC 2952 (KLR)
The bottom line
#A Kenyan court awarded a nurse only KShs.36,000 in unpaid salary because she could not prove she was unfairly sacked, even though the hospital never defended the case.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant proved an employment relationship with the respondent
The court found on re-evaluation that the appellant was an employee of the respondent but did not render services continuously
The bank statement showed payments from the respondent in November 2023 and January 2024, establishing a contractual relationship with salary consideration and showing the appellant was not a casual employee under Section 37 of the Employment Act. However, gaps in payment, absence of NSSF/NHIF/P9 records, a rota for only one month, and failure to avail earlier bank statements meant continuous service was not proven.
Whether termination of employment was proven and unfair
Not proven; the claim failed
Under Section 47(5) of the Employment Act the burden of proving unfair termination rests on the employee. The appellant's written statement was silent on how the termination took place, she adduced no evidence of appealing or returning for dues, and a mere allegation of termination on a date is insufficient. The event must be evidentially demonstrated even in an undefended suit.
Whether the trial court failed to consider the appellant's submissions
No error found
The trial magistrate had expressly stated she considered the submissions but did not reproduce them, and a court is not bound to reproduce submissions as long as the judgment demonstrates consideration of evidence and law. Submissions are not evidence and many cases are decided without them.
Entitlement to salary arrears
Award limited to Kshs.36,000 for December 2023 and 11 days of February 2024
November 2023 and January 2024 salaries were shown as paid. Without testimony of working without rest days, and 13th February 2024 being a Tuesday, only 11 days at Kshs.1,000 per day were allowed for February, totalling Kshs.36,000.
Legal principles established
#- Even in an undefended suit the burden of proof is not lowered; the claimant must still prove the employment relationship and the unfair termination on a balance of probabilities
- The employee bears the burden of evidentially demonstrating unfair termination, after which the burden shifts to the employer to justify it
- Submissions do not constitute evidence
- A party relying on a document bears the duty to make it understandable and usable as evidence
Court orders
#- 1.The judgment of the trial court dated 28th May, 2025 is set aside in its entirety
- 2.In place of the trial court's judgment, an award of Kshs.36,000.00 is entered for the appellant being salary for December 2023 and 11 days in February 2024
- 3.All other claims were found unmerited and dismissed
- 4.Each party to bear their own costs
- On appeal from
- Nyando Magistrate's Court
- MCELRC No. E004/2024
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court's judgment (this is an appeal to the ELRC against the decision of the trial magistrate)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Akamah v Board of Management Awasi Catholic Mission Hospital (Appeal E035 of 2025) [2025] KEELRC 2952 (KLR)", Case Analysis (2025). MCELRC No. E004/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2952/eng@2025-10-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.