Rupa Mills Limited v Hillary Kaverenge Chogo
The bottom line
#Kenya's Employment Court ruled that an employee claiming unfair dismissal must first prove they were actually dismissed before the employer must explain itself.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court erred in finding that the Respondent's employment was unfairly terminated
- 2.Whether the trial court erred in awarding the Respondent Kshs. 20,000 in lieu of notice and Kshs. 60,000 as compensation for unfair termination
- 3.Whether the trial court erred in awarding the Respondent costs of the suit
Key legal issues
#Whether the Respondent proved that his employment was terminated (as opposed to desertion) so as to shift the burden to the Appellant
The Respondent failed to prove termination; his account was contradictory and unsupported by employment records for 2019-2021, while the Appellant's evidence of absence from 3rd January 2019 was corroborated by the letter of 6th January 2019 and the muster roll
The Respondent's testimony on the date and manner of dismissal was inconsistent (2021 return versus August 2021 on cross-examination), and he produced only 2017 payslips. The Appellant's contemporaneous internal letter reporting absence and the muster roll corroborated desertion. The trial magistrate therefore erred in shifting the burden to the Appellant without first finding that the Respondent had proved unfair termination.
Whether the awards of notice pay and compensation for unfair termination were legally justified
The awards could not stand because remedies under section 49 presuppose a finding of termination by the employer, which was not established
Since the foundational finding of unfair termination was unsupported, the consequential awards of Kshs. 20,000 notice pay and Kshs. 60,000 compensation (three months' salary) had no legal basis and fell with the trial court's judgment.
Whether the trial court erred in awarding costs to the Respondent
The costs order fell with the dismissal of the claim; each party was ordered to bear its own costs in the trial court and on appeal
Having set aside the trial judgment in its entirety and dismissed the claim, the court did not award the Appellant the costs it sought but directed each party to bear its own costs both in the trial court and on appeal.
Legal principles established
#- Under section 47(5) of the Employment Act, the employee bears the initial burden of proving that an unfair termination or wrongful dismissal occurred; only then does the employer bear the burden of justifying the grounds for termination
- On a first appeal the court re-evaluates and re-examines the evidence adduced at trial to reach its own findings, mindful that it did not hear or see the parties testify
Court orders
#- 1.The judgment of the trial court delivered on 23rd November 2023 in Eldoret CMELRC No. 105 of 2022 is set aside in its entirety and replaced with an order dismissing the Respondent's claim
- 2.Each party shall bear its costs in the trial court and on appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Eldoret Chief Magistrate's Court (CMELRC)
- Eldoret CMELRC No. 105 of 2022
- Jurisdiction invoked
- First appeal from the subordinate court under the Employment Act regime (ELRC appellate jurisdiction)
Relief refused
#Respondent's claim for notice pay, unfair termination compensation, certificate of service, costs and interest
Respondent failed to discharge the initial burden under section 47(5) of proving that an unfair termination occurred; the case must collapse
Costs
Each party shall bear its costs in the trial court and on appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Under section 47(5) of the Employment Act, the employee bears the initial burden of proving that an unfair termination or wrongful dismissal occurred. Once that burden is discharged, the employer bears the burden of justifying the grounds for the termination or dismissal.
For the Appellant to be called upon to account for the termination of the Respondent's employment, he must first prove that his employment was terminated by the Respondent at the time and in the manner he has alleged. If he fails to prove this then the case must collapse.
I find that the Trial Magistrate erred in shifting the burden to the Appellant to prove reasons for termination without making a finding whether the Respondent had proved the unfair termination of his employment.
The judgment of the trial court in delivered on 23rd November 2023 in Eldoret CMELRC No. 105 of 2022 hereby set aside in its entirety and replaced with an order dismissing the Respondents claim.
Each party shall bear its costs in the trial court and on appeal.
Issues in the judgment
#Filing date inconsistency: claim dated 14th September 2022 but court states it was filed 11th September 2023
Conflicting dates for expected resumption of duty: 3rd January 2019 elsewhere, 2nd January 2019 here
Appellant's Memorandum of Response described as desertion after Christmas 'in 2018' while claimant alleges dismissal in 2021
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rupa Mills Limited v Hillary Kaverenge Chogo", Case Analysis (2026). Appeal No. E002 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2719/eng@2026-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.