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ELRCDismissedMemorandum of Appeal dated 10th November 2024 (ELRC Appeal)· [2025] KEELRC 3041 (KLR)

Gachie v Lochab Transporters Limited (Appeal E243 of 2024) [2025] KEELRC 3041 (KLR)

Employment and Labour Relations Court
23 October 2025
1,654 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An employee lost their unfair termination appeal in Kenya because vague evidence failed to prove an employment relationship ever existed.

What this practically means

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Executive summary

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This was a first appeal to the Employment and Labour Relations Court against the judgment of a Principal Magistrate who, in formal proof proceedings (the Respondent employer having neither entered appearance nor filed a response), dismissed the Appellant's entire employment claim for failure to discharge his burden of proof under section 47(5) of the Employment Act. The Appellant challenged the dismissal on grounds that the trial court erred in finding non-payment of salary unproved, failing to award notice pay, house allowance, compensation for unfair termination, unpaid days worked, untaken leave, and underpayments. Ocharo Kebira J restated that a first appeal is by way of retrial, citing Selle v Associated Motor Boat Co and German School Society v Ohany. The court condensed the appeal into two issues: whether the claim was proved to the requisite standard, and whether the reliefs were due. Applying section 47(5)'s reverse burden, the court held the Appellant's evidence was fatally sketchy: he gave no specific commencement or termination dates, and relied on an uncertified photocopy of an NSSF statement whose registration date of 12th October 2004 contradicted his claim of employment from 2002. Having found no proof of the employment relationship, the court held that remedies dependent on the unfair termination claim fell away, and independent remedies could not issue absent proof of employment. The appeal was dismissed with no order as to costs.

Key legal issues

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01

Whether the Appellant proved unfair termination to the requisite standard

Holding

No - the claim failed for want of proof of the employment relationship and the material dates

Reasoning

Section 47(5) imposes a reverse burden: the employee must prima facie prove unfair termination before the burden shifts to the employer. The Appellant was casual about the commencement date of employment, relied on an uncertified NSSF copy whose registration date (12th October 2004) contradicted the claimed 2002 start, and was not specific about the date and manner of termination. Such sketchy evidence cannot discharge the burden, so the dismissal of the claim was proper.

p. 4
02

Whether remedies flowing from, and independent of, the unfair termination claim were available

Holding

Neither category was available

Reasoning

Remedies based on unfair termination fell away with the failure of that claim. Remedies independent of it (if any) also could not be granted because the Appellant never demonstrated that an employer-employee relationship existed at all. Proof of employment is a predicate to every relief sought.

p. 4
03

The role of a first appellate court

Holding

A first appeal is by way of retrial; the court re-evaluates the evidence and draws its own conclusions while making due allowance for not having seen the witnesses

Reasoning

Relying on Selle v Associated Motor Boat Co and German School Society v Ohany, the court restated that a first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions, being the final court of fact, though not bound to follow trial findings where they overlook material circumstances.

p. 3

Legal principles established

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  • Under Section 47(5) of the Employment Act, an employee alleging unfair termination must first prima facie prove it, whereupon the burden shifts to the employer
  • The burden under section 47(5) can seldom be discharged where the employee's evidence on the employment relationship is sketchy
  • A first appellate court must subject the evidence to fresh scrutiny and reach its own conclusions

Court orders

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  1. 1.The appeal is dismissed with no order as to costs

Authorities

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Legislation

  • Employment ActSection 47(5)
  • Employment ActSection 45(7)

Cases cited (4)

  • Selle -vs- Associated Motor Boat Co
    [1968] EA 123
  • German School Society & another v Ohany & another
    (Civil Appeal 325 & 342 of 2018 (Consolidated) [2023] KECA 894 (KLR) (24 July 2023)
  • Kenya Ports Authority v Kuston (Kenya) Limited
    (2009) 2EA 212
  • Abdul Hameed Saif v Ali Mohamed Sholan
    (1955), 22 E.A.C.A. 270
On appeal from
Principal Magistrate's Court
not stated
Jurisdiction invoked
First appellate jurisdiction over the Principal Magistrate's judgment in an employment claim

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, "Gachie v Lochab Transporters Limited (Appeal E243 of 2024) [2025] KEELRC 3041 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 10th November 2024 (ELRC Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3041/eng@2025-10-23

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