https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1416

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT *&* LABOUR RELATIONS** **COURT OF KENYA AT KISUMU** **APPEAL NO. E014 OF 2026** KENNEDY ODHIAMBO OTIENO…………….……………**APPELLANT** **VERSUS** NYANZA SUGAR *&* PRODUCE LIMITED….................**RESPONDENT** *(Being an appeal from the judgment and decree of Hon. Maureen Nyigei (SPM) in Kisumu CMELRC NO. E183 OF 2024 delivered on 27th January 2026)* **JUDGMENT** 1. Vide a memorandum of claim dated 22nd July 2024, Kennedy Odhiambo Otieno (the Appellant) instituted these proceedings against Nyanza Sugar *&* Produce Limited (the Respondent) before the Magistrate's Court at Kisumu alleging unfair termination of employment. It was his case that he was employed by the Respondent as a turn boy in January 2000 and worked till 24th May 2024 when his employment was verbally terminated. He averred that on the fateful day he was terminated by the manager Mr. Nilesh for agitating for better pay and enrolment to NSSF and NHIF. He maintained that the dismissal was unfair both procedurally and substantively. In support of his claim, the Appellant produced five documents, among them a list of turn boys and their respective vehicles. 2. In opposition to the suit the Respondent filed a Memorandum of Response dated 20th August 2024. While admitting that the Appellant had previously worked for it as a casual employee, the Respondent contended that he voluntarily left employment on 9th January 2012. To support that position, it produced a certificate of payment dated the same day and signed by the Appellant acknowledging receipt of his final dues. 3. Upon hearing the parties, the Trial Court delivered its judgment on 27th January 2026 dismissing the suit with no order as to costs. The Trial Magistrate found that the Appellant had failed to prove that he remained in the Respondent's employment beyond 9th January 2012. The Court further held that the documents relied upon by the Appellant could not be authenticated and therefore lacked evidential value. 4. Aggrieved by that decision, the Appellant lodged a Memorandum of Appeal dated 2nd February 2026 setting out the following grounds: * 1. *That he learned Magistrate erred in law by misdirecting herself on the burden of proof, by placing the entire burden on the appellant to prove the existence of employment between 2021 and 2024, contrary to section 10(7) of the Employment Act, which obligates an employer to produce employment records once employment is alleged.* 2. *That the learned Magistrate erred in law by failing to draw an adverse inference against the Respondent for its admitted failure to produce statutory employment records, attendance records, pay records or any employment documentation for the alleged period, despite being the custodian of such records.* 3. *That the learned Magistrate erred in law and fact by dismissing the appellant's oral evidence and that of his witness solely on the basis that the documents produced lacked stamps, logos or signatures, without evaluating the credibility, consistency and corroborative value of the oral testimony.* 4. *That the Learned Magistrate erred in law by applying an incorrect standard of proof namely proof "without a shadow of doubt", instead of the legally applicable balance of probabilities in civil and employment disputes.* 5. *That the Learned Magistrate erred in law by failing to appreciate that employment relationships, particularly for low-wage and informal sector workers, are a question of fact that may be proved through oral testimony and conduct of the parties, even in the absence of formal written contracts.* 6. *That the Learned Magistrate erred in law and fact by failing to properly consider and analyse the appellant's evidence that he was recalled to work after 2012 and continuously served the respondent until May 2024, an assertion that was supported by a witness and not effectively rebutted by the respondent.* 7. *That the Learned Magistrate erred in law by determining the issue of unfair termination solely on the finding that employment was not proved, without interrogating whether the respondent complied with the mandatory procedural and substantive requirements for termination under the Employment Act.* 8. *That the Learned Magistrate erred in law and fact by arriving at a decision that was against the weight of the evidence on record and the applicable principles of employment and labour law*. 5. On the basis of the foregoing grounds, the Appellant urges this Court to allow the appeal, set aside the judgment of the Trial Court and substitute it with a finding that he was an employee of the Respondent whose employment was unlawfully terminated. He further prays for costs of both the appeal and the proceedings before the Trial Court together with any other appropriate relief. 6. The appeal was canvassed by way of written submissions. Appellant's Submissions 1. In support of the appeal the Appellant condensed the grounds of appeal into the following issues for determination: * + 1. Whether the Trial Magistrate erred in law and in fact in her approach to the burden and standard of proof and in the evaluation of the evidence on record, thereby arriving at an erroneous finding that the Appellant was not in the Respondent's employment as at 2024; 2. Whether, based on the totality of the evidence on record, the Appellant proved on a balance of probabilities that he was an employee of the Respondent until his termination in May 2024, and that the termination of his employment was unfair and unlawful; and 3. Who should bear the costs of this appeal. 2. On the first issue, the Appellant submits that the Trial Magistrate fundamentally misdirected herself on the burden and standard of proof and consequently arrived at an erroneous conclusion regarding the existence of employment. He contends that the Trial Court improperly imposed upon him the entire burden of proving employment between 2012 and 2024 without due regard to sections 10(7) and 74 of the Employment Act, which require employers to keep employment records and shift the evidential burden to the employer where such records are not produced. The Appellant points to his own testimony together with that of CW2 as evidence of continuous service up to 2024, while emphasizing that the Respondent failed to produce employment records to rebut that assertion. In that regard, he relies on the case of **Abdul *v* Mokua [2025] KEHC 4105 (KLR)**, where the court, citing William **Kabogo Gitau *v* George Thuo *&* 2 others [2010] 1 KLR 526**, reiterated that in civil claims a party succeeds upon establishing his case on a balance of probabilities. 3. The Appellant further asserts that the learned Trial Magistrate applied the wrong standard of proof by stating that employment between 2021 and 2024 had not been proved “without a shadow of doubt.” He maintains that employment disputes are civil proceedings and therefore only require proof on a balance of probabilities rather than proof beyond reasonable doubt. He once again relies on **Abdul *v* Mokua** *(supra)* for the proposition that proof on a balance of probabilities merely requires evidence demonstrating a reasonable degree of probability, however narrow. 4. With regard to the evaluation of evidence, the Appellant submits that the Trial Court failed to properly analyse both the oral and documentary evidence tendered before it. He contends that his evidence and that of CW2 regarding his continued employment up to 2024 remained consistent and unshaken during cross-examination and ought therefore to have been accepted. He further faults the Trial Court for disregarding his documents solely because they lacked stamps, logos or signatures, arguing that in informal employment arrangements where payments are often made in cash, documentary evidence may be scarce or altogether unavailable. In that regard, the Appellant relies on sections 62 and 63 of the Evidence Act and maintains that the oral testimony adduced constituted direct evidence rather than hearsay. 5. On the second issue, the Appellant submits that he proved on a balance of probabilities that he remained in continuous employment with the Respondent until May 2024 when he was verbally dismissed. He reiterates that his testimony concerning continuous service was corroborated by CW2 and insists that the Respondent's assertion that his employment ended in 2012 ought therefore to have been rejected. Having, in his view, established the existence of an employment relationship, the Appellant submits that the Respondent was obligated to comply with the substantive and procedural safeguards set out under sections 43, 45 and 47 of the Employment Act. He contends that the Respondent failed to discharge that obligation since he was verbally terminated without notice and without being accorded a hearing. Consequently, the Appellant contends that had the Trial Court properly directed itself on both the law and the evidence, it would have found that his termination was unfair and unlawful. On costs, the Appellant submits that costs follow the event. He urges the Court to award him costs of both the appeal and the proceedings before the Trial Court pursuant to section 27 of the Civil Procedure Act. Respondent's Submissions 1. The Respondent submits at the outset that although this Court, as a first appellate court, is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions, it must nonetheless exercise that mandate cautiously, bearing in mind that it neither saw nor heard the witnesses testify. In support of this proposition, it cites **Peter *v* Sunday Limited [1968] EA 123**. Flowing from the foregoing, the Respondent maintains that the judgment of the Subordinate Court was sound, properly grounded on both the evidence and the law, and ought not to be disturbed. 2. On the issue of the burden of proof, the Respondent submits that it was incumbent upon the Appellant to demonstrate that he remained in employment beyond the year 2012. It contends that no evidence was adduced to show that the Appellant resumed duty after receiving his final dues in 2012. The Respondent asserts that once it demonstrated that the Appellant's employment ended in 2012 upon signing for his dues, the burden shifted to the Appellant to prove that he subsequently resumed work, which he failed to do. The Respondent further submits that the Trial Court correctly found that the Appellant's documents lacked evidential value because they could not be authenticated. In support of that position, it relies on **Postal Corporation of Kenya *v* I.T. Inamdar *&* 2 others [2004] KECA 139 (KLR)** and **Chirag Builders Limited *v* Greenview Developers Limited (Civil Suit E391 of 2020) [2025] KEHC 16109 (KLR)**, where courts underscored that unsigned documents cannot be relied upon to prove a party's claim in the absence of credible admissible evidence. The Respondent also relies on **Douglas Odhiambo Apel *&* another *v* Telkom Kenya Limited [2016] eKLR** for the proposition that a party bears the duty of adducing evidence in proof of his claim and that pleadings and submissions do not constitute evidence. 3. Additionally, the Respondent submits that the Appellant's own evidence casts doubt on his case. In particular, it points out that the documents produced by the Appellant identify him as a turn boy whereas, in his testimony, he described himself as a loader attached to the store. According to the Respondent, that inconsistency further demonstrates that the Appellant was never recalled to work after 2012. On that basis, the Respondent urges the Court to dismiss the appeal with costs. Disposition 1. The Court being the first port of call on appeal has to uphold the principles which follow a line of precedent led by the case of **Selle *v* Associated Motor Boat Co. Ltd [1968] EA 123** and restated in the case of **Kenya Ports Authority *v* Kuston (Kenya) Limited [2009] 2 EA 212** where the Court of Appeal rendered itself as follows: "*On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.*" [Underline for emphasis] 1. Having properly warned myself that I neither saw nor heard the Appellant nor the Respondent testify in trial, I have duly evaluated the evidence the parties presented in the Trial Court, and which evidence and documents in support thereof, are before this Court and I have come to the following determination. 2. The Court distils the issues for determination to be: What the standard of proof is in employment matters; Whether the Appellant proved he was an employee of the Respondent; Whether the Appellant was entitled to any reliefs. 1. The standard of proof in employment matters is the balance of probabilities. It simply means that the allegations made are more likely to be true than not. This standard is much lower than the criminal standard of "beyond a reasonable doubt". This standard of proof is what the Court should have applied and not the standard of proof that is "without a shadow of doubt". The standard applied was higher than what was applicable in the circumstances. 2. Having so held, this Court is bound to evaluate the evidence adduced and come to its own conclusion. The Appellant asserted he was employed by the Respondent as a turn boy in January 2000 and worked till 24th May 2024 when his employment was verbally terminated. He stated that on the fateful day he was terminated by the manager Mr. Nilesh for agitating for better pay and enrolment to NSSF and NHIF. He pleaded he was a turn boy, but in his testimony stated that he was a loader attached to the store. A loader is someone who works moving items into a means of conveyance such as a lorry or conversely, offloads items delivered to the store. A turnboy on the other hand is a colloquial term primarily used in East Africa for someone who assists a truck driver in loading or offloading items on a journey to deliver goods to customers. If the Appellant was in actual fact a turnboy, he ought to have been able to state what vehicles he served on and perhaps even drop the name of a driver or two. He did none of that. His testimony did not align with his pleadings. 3. The evidence adduced by the Respondent is that the Appellant had previously worked for it as a casual employee. The evidence by the Respondent is that the Appellant voluntarily left employment on 9th January 2012. The certificate of payment dated 9th January 2012 produced as evidence duly signed by the Appellant in acknowledgement of the payment of final dues is uncontroverted. How come the Appellant was mute about that break in service if indeed he was an employee of the Respondent from 2000 till 2024? The Appellant therefore seems to have had his employ end in 2012 and he crafted a claim asserting he was employed till 2024. It is inconceivable that having worked from 2000 the Appellant was agitating for enrolment in 2024. Any one is permitted to enrol themselves in NSSF and NHIF and there is no requirement for the employee to wait to be enrolled by the employer. It is impossible to fathom how he served for close to 24 years without this critical registration given the importance of the statutory contributions. In the last 16 years or so, it has been very important to have medical cover under NHIF which not only used to cover an employee but also their dependants. How the Appellant served without being a member of any of the two schemes is beyond me. 4. The foregoing discourse is proof that the Court is not persuaded that there was an employment relationship beyond January 2012. As the Appellant bore the burden of proving he was employed and failed to do so, there would be no order issued in his favour. In the final analysis, though the Learned Magistrate applied the incorrect standard she reached the correct conclusion in regard to the absence of an employment relationship. The Court is confident that the use of the words *"without a shadow of doubt"* connoted the Learned Magistrate entertained doubt as to the provenance of the Appellant's testimony. The truth was lacking and was not lurking somewhere in the shadows of the testimony adduced and therefore the appeal before me is devoid of merit and only fit for dismissal. 5. The Appellant asserted that costs follow the event. In the appeal before me, he urged the Court to award him costs of both the appeal and the proceedings before the Trial Court pursuant to section 27 of the Civil Procedure Act. Just to correct him, the Civil Procedure Act has no application in this Court save for matters execution. The Employment Act as well as the Employment and Labour Relations Court Act together with the Employment *&* Labour Relations Court (Procedure) Rules, 2024 provide a complete code in handling of employment matters before this Court and the Magistrates Court. 6. In employment disputes, costs are awarded in the discretion of the Court. They do not follow the event. Given the unique nature of employment disputes where the might of parties is disparate, the Court is required to exercise its discretion in granting or denying costs. In this case, the claim before the Learned Magistrate and the appeal before me is anything but desperate. The Appellant knew he had presented insufficient material to convince the court on a balance of probabilities and yet chose to mount an appeal challenging the sound decision on facts which led to the correct determination of the claim (only successfully challenging the standard of proof applied – a pyrrhic one at that). It is my order that the Appellant should bear the costs of this appeal for mounting an unsuccessful appeal before me. It is so ordered. **Dated and delivered at Kisumu this 25th day of May 2026** **Nzioki wa Makau, MCIArb.** **JUDGE**