https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1473

Mwangi v Githinji t/a Geebee Complinks (Appeal E013 of 2025) [2026] KEELRC 1473 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1473 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nakuru Appeal E013 of 2025 J Rika, J May 29, 2026 Between Flora Waithera Mwangi Appellant and Priscah Waithera Githinji t/a Geebee Complinks Respondent (An Appeal against the Judgment of Hon. E. Juma [C.M.] delivered on the 11th June 2024 in Nakuru C.M E&LRC Cause No. E098 of 2022, between the Parties herein) Judgment 1.The Appellant filed the Claim at the Trial Court, where she alleged to have been employed by the Respondent, as a shop assistant. 2.She pleaded that the Respondent unfairly dismissed her. She prayed for compensation for unfair dismissal and various terminal benefits. 3.Thee Court found that she did not avail sufficient evidence to establish her Claim. It was dismissed, with no order on the costs. 4.She filed a Memorandum of Appeal dated 11th March 2025, listing 5 Grounds of Appeal. Ground 2 and 3 relate to the same issue, shifting of the burden of proof, and shall be treated as 1 Ground. 5.They are:-a.The Trial Court erred by failing to consider the Appellant’s oral and documentary evidence.b.The Trial Court erred by shifting the burden of proof of the terms of the employment to the Appellant, in contravention of Section 10 [7] of the Employment Act.c.The Trial Court erred in relying strictly on Sections 107, 108 and 109 of the Evidence Act, while it ought to have relied on Section 47 [5] of the Employment Act.d.The Trial Court erred by failing to consider the Appellant’s submissions and judicial authorities. 6.The Appellant proposes: -a.The Appeal is allowed, and the Judgment dated 11th June 2024, be reviewed and / or set aside.b.The Court be pleased to enter Judgment as prayed in the Statement of Claim.c.Costs of the Appeal and the Trial be borne by the Respondent. 7.It was agreed by the Parties that the Appeal is considered and determined on the basis of the Record of Appeal and Parties’ Submissions. They confirmed filing and exchange of their Submissions at the last appearance before the Court, on 12th March 2026. The Court Finds: - 8.It was established at the Trial, that the Appellant was an Employee of the Respondent. This is recorded at page 73 of the Record of Appeal. 9.The Trial Court concluded at the same page, that the Appellant did not generally prove her claims to the requires standard. 10.The Appeal largely concerns the standard and burden of proof, in an employment dispute. 11.There were claims for terminal benefits pleaded by the Appellant at the Trial Court, which included notice, leave, service, underpayment, unpaid salaries, normal overtime, and an amount of Kshs. 150,000, said to have been borrowed by the Respondent, from the Appellant. 12.The burden of proof in these monetary claims fell on the Respondent, and never shifted. There was no error on the part of the Trial Court, in applying the Evidence Act, invoking the maxim that he who alleges, must prove. 13.The Appellant misapprehends Section 10 [7] of the Employment Act, in Ground 2 of her Memorandum. The specified items above, were not disputed to be part of the Appellant’s contract. Section 10 [7] is aimed at proof of the terms of a contract of employment, where the terms orally stated by the Employee, are disputed by the Employer, and the Employer has not provided a written contract or particulars, setting out the terms. 14.If the Employer fails to produce a written contract or particulars of the contract, the burden of proof shifts, and the Employer is required to establish that the oral evidence of the Employee, on the existence of the terms claimed by the Employee, is not true. 15.Section 10[7] of the Employment Act, is not a substitute for proof that the items are owed to an Employee, by his or her Employer. In issue was whether the Appellant established through her evidence, that items were owed to her. The burden of proof under Sections 108 and 109 of the Evidence Act, fell on the Appellant, to establish the amounts claimed as terminal benefits. 16.The claim for refund of Kshs. 150,000 to the Appellant by the Respondent, does not appear to the Court to have been part of an employment dispute. It was money claimed to have been lent to one business partner, by the other partner. 17.This is why in the view of the Court, it was necessary for the Appellant to satisfy the evidentiary burden, under Sections 108 and 109 of the Evidence Act, with respect to the monetary claims. 18.Section 108 of the Evidence Act states that the burden of proof, in a suit or proceedings, lies on that person who would fail, if no evidence is given on either side. Section 109 regulates proof of particular fact, which lies on the person who wishes the Court to believe in it existence. 19.The Appellant did not establish her prayers for terminal benefits before the Trial Court, and the Court has no reason to interfere with the finding of the Trial Court on this. 20.The Appellant said nothing about items such as service pay. She said that she did not have evidence that she worked on public holidays. 21.She was not a conventional Employee of the Respondent. She operated an M-pesa business belonging to her sister, within the Respondent’s business. 22.She would allocate money to herself from the business. At page 66 of the Record of Appeal, it is apparent that she allocated herself Kshs. 50,000, explaining that she was unwell and needed the money for treatment. 23.It was not therefore in error, for the Trial Court to require her to specifically prove terminal benefits. It would be difficult for any Court to award underpayment of salary and unpaid salaries to an Employee who was in business partnership with her Employer, and who could take money for her own use from the business, without consulting her Employer. 24.She told the Trial Court that for the entire period worked, she was only paid for 2 months. The Respondent stated that she was paying herself from the M-pesa business. She was not a conventional Employee. How would an Employee lend her Employer Kshs. 150,000, while being paid a salary of Kshs. 8,000 monthly? That salary was not even regularly paid. This was an employer-employee relationship, clouded heavily, by elements of a business partnership. 25.The burden of proof, is assessing if termination was fair under Sections 41 and 45 of the Employment Act; and whether the Employer has proved valid reason to justify termination under Section 43 and 45 of the Employment Act; is different from proof of terminal benefits. 26.The standard in general, is on a balance of probability. 27.The burden of proof on unfair termination, is elaborated under Section 47[5] of the Employment Act, worded as follows: -‘’ For any complaint of unfair termination of employment or wrongful dismissal, the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the Employee, while the burden of justifying the grounds for the termination or employment or wrongful dismissal, shall rest on the Employer.’’ 28.Section 43 of the Employment Act sets the standard of proof for Employers, in establishing valid reasons justifying termination. The provision requires that the reasons are matters Employers genuinely believed to exist at the time of termination. This is proof on a balance of probabilities. 29.The provision also clearly places the burden of justification of the reasons for termination, on the Employers. 30.It was therefore for the Appellant to establish that she was unfairly dismissed, while the Respondent had the obligation to establish the reasons, justifying termination. 31.This burden of proof, varies from the burden of proof in establishing terminal benefits, in that the Employer is required to prove, that the grounds justifying termination were valid grounds. 32.Having established that there was an employer-employee relationship, the Trial Court ought to have examined if that relationship was terminated fairly, under Sections 41, 43, 45 and 47[5]of the Employment Act. 33.The Appellant told the Trial Court that she was alleged by the Respondent, to have stolen from the business. She was arrested and locked up at a Police Station, upon report by the Respondent, that she had stolen from the Respondent. When she attempted to go back to work, she was told by the Respondent that she could no longer work. She was not issued a notice of termination. 34.Her evidence was sufficient to establish a prima facie case of unfair termination, which then shifted the burden under Sections 43 and 47[5] of the Employment Act, upon the Respondent, to justify the grounds. 35.The Respondent told the Trial Court that the Appellant deserted after stealing from her. She did not dismiss her. 36.There was however no evidence at the Trial Court, that the Respondent attempted to reach out to the Appellant, and taken her through a disciplinary hearing, to establish the employment offence of desertion. There were no letters to show cause or invitation to any disciplinary forum, coming from the Respondent to the Appellant. The Respondent is a complainant against the Appellant in the criminal trial relating to the alleged offence of stealing, and should not have had a problem tracing the Appellant. 37.The Trial Court erred in its lack of appreciation of the burden of proof, in unfair termination and wrongful dismissal, under Sections 41, 43, 45 and 47[5] of the Employment Act. 38.It was in error, by its blanket application of the Evidence Act, without regard to the provisions of the Employment Act, on proof in unfair termination. 39.The Respondent did not discharge her burden of proof, under Sections 43 and 47[5] of the Employment Act. 40.While upholding dismissal of the prayers for terminal benefits, the Court would interfere with the Judgment of the Trial Court, by declaring that termination was unfair. 41.On remedies, it is noted that the Appellant worked for little over 1 year. She was running her own business from within the Respondent’s business, and earning income. She significantly caused or contributed to the circumstances leading to termination of her employment. 42.She is awarded 1 month salary in compensation for unfair termination at Kshs. 8,000, and 1 month salary in lieu of notice at Kshs. 8,000- total Khs. 16,000. 43.No order on the costs of the Appeal.It is ordered: -a.The Appeal is upheld in part.b.It is declared that termination of the Appellant’s contract of employment by the Respondent was unfair.c.The Respondent shall pay to the Appellant equivalent of 1-month salary in lieu of notice at Kshs. 8,000 and equivalent of 1-month salary in compensation for unfair termination, at Kshs. 8,000 -total Kshs. 16,000.d.No order on the costs. DATED, SIGNED AND DELIVERED ELECTRONICALLY AT NAKURU, UNDER RULE 68[5] OF THE E&LRC [PROCEDURE] RULES, 2024, THIS 29TH DAY OF MAY 2026.JAMES RIKAJUDGE