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ELRCDismissedELRC Appeal No. E048 of 2025

Isaac Otieno Onyango v China State Construction Engineering Corporation Limited

Employment and Labour Relations Court of Kenya
25 September 2026
2,492 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan welder lost his unfair termination appeal because he couldn't prove he was actually fired — evidence comes first.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Nyeri (Stella Rutto, J) dismissed an appeal against the judgment of Hon. Peter Ndwiga, Chief Magistrate, in Murang'a ELRC Cause No. 8 of 2019, which had dismissed the Appellant's employment claim in its entirety. The Appellant, a welder engaged on the Nairobi Bulk Water Supply Project, claimed his employment was terminated on 25th January 2019 via a redundancy notice, without reasons or a disciplinary hearing, and sought notice pay, compensation, house allowance, leave pay, gratuity and a certificate of service. The Respondent maintained he remained employed until he absconded duty in 2023. On appeal, the Appellant argued the Trial Court erred in failing to find wrongful termination and in dismissing the reliefs. The Court, guided by Selle v Associated Motor Boat Company and Mwanasokoni v Kenya Bus Services on the first appellate court's duty, distilled two issues. It held that under Section 47(5) of the Employment Act the employee bears the initial burden of proving termination and its unfairness, applying Pius Machafu Isindu v Lavington Security Guards Limited. The Appellant did not produce the alleged redundancy notice, admitted his name was absent from it, and admitted receiving salary for January and February 2019 - facts inconsistent with termination on 25th January 2019. The Court found no basis to interfere with the Trial Court's findings and dismissed the appeal in its entirety with costs to the Respondent. The Respondent's desertion contention was left undetermined as outside the pleaded case.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Trial Court erred in finding that the Appellant had failed to prove that his employment was unlawfully terminated
  2. 2.Depending on the determination of the first issue, whether the Trial Court erred in dismissing the reliefs sought by the Appellant

Key legal issues

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01

Whether the Appellant proved that his employment was terminated on 25th January 2019

Holding

No. The Appellant did not produce the alleged redundancy notice, admitted his name was not on it, and admitted being paid salary for January and February 2019, which is inconsistent with termination on 25th January 2019.

Reasoning

The Appellant pleaded termination by a redundancy notice posted on 25th January 2019 but never produced it and admitted his name was absent from it. He conceded receipt of salary for January and February 2019, which the Court found inconsistent with termination on 25th January 2019. Under Section 47(5) of the Employment Act, the employee bears the initial burden of proving termination and its unfairness before the burden shifts to the employer. The Appellant failed to discharge that burden on a balance of probabilities.

p. 12
02

Whether the Trial Court erred in dismissing the reliefs sought

Holding

No. Since no unfair termination was established, the reliefs do not lie.

Reasoning

The reliefs (notice pay, compensation, house allowance, leave, gratuity, certificate of service) were all premised on a finding of unfair or wrongful termination. Having found that the Appellant failed to establish that his employment was terminated at all, the question of the fairness or lawfulness of the alleged termination does not arise, and the reliefs necessarily fail. The Trial Court's dismissal of the claim was therefore correct and there was no basis to interfere with it.

p. 12
03

Whether the Appellant deserted duty from June 2023

Holding

Not determined; outside the scope of the appeal since the Appellant's case was termination on 25th January 2019.

Reasoning

The Respondent contended the Appellant deserted duty in June 2023, but the Court held this issue did not fall for determination because the Appellant's pleaded case before the Trial Court was termination on 25th January 2019. The Court declined to make findings on desertion, leaving that question open.

p. 12

Legal principles established

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  • Under Section 47(5) of the Employment Act, the employee bears the initial burden of proving that an unfair termination or wrongful dismissal occurred before the evidential burden shifts to the employer
  • A first appellate court must reconsider, re-evaluate and analyse afresh the evidence and reach its own conclusions while allowing for the fact it neither saw nor heard the witnesses

Court orders

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  1. 1.The Appeal fails and is dismissed in its entirety with costs to the Respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Murang'a Chief Magistrate's Court (ELRC Cause No. 8 of 2019)
ELRC Cause No. 8 of 2019
Jurisdiction invoked
First appellate jurisdiction of the Employment and Labour Relations Court over the subordinate court's employment cause

Relief refused

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All reliefs sought in the Memorandum of Claim (notice pay, compensation for unlawful termination, house allowance, leave, gratuity, certificate of service)

The Appellant failed to prove that his employment was terminated on 25th January 2019; absent unfair termination, the reliefs do not lie

p. 12

Costs

Appeal dismissed with costs to the Respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Ultimately, I find no basis upon which to interfere with the decision of the learned Trial Magistrate. Accordingly, the instant Appeal fails and is dismissed in its entirety with costs to the Respondent.
p. 12Final orders - dismissal of appeal
the employee bears the initial burden of proving that an unfair termination or wrongful dismissal has occurred. Once that burden is discharged, the evidential burden shifts to the employer to justify the grounds for the termination of employment
p. 10Burden of proof under Section 47(5) Employment Act
As a first appellate Court, this Court is required to reconsider, re-evaluate and analyse afresh the evidence adduced before the Trial Court and arrive at its own independent conclusions.
p. 7Duty of first appellate court
In the absence of a finding of unfair termination, the reliefs sought by the Appellant before the Trial Court do not lie.
p. 12Reliefs premised on unfair termination

Issues in the judgment

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minor

Judgment delivery date (25 September 2026) post-dates the appeal filing (10 October 2025) but the cause originated in 2019; chronology as printed appears anomalous.

minor

Respondent's name differs between the cause title and the lower court case name.

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, "Isaac Otieno Onyango v China State Construction Engineering Corporation Limited", Case Analysis (2026). ELRC Appeal No. E048 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2646/eng@2026-09-25

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