Ogola v Moi University (Appeal E009 of 2026) [2026] KEELRC 1299 (KLR) (18 May 2026) (Judgment)

Ogola v Moi University (Appeal E009 of 2026) [2026] KEELRC 1299 (KLR) (18 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1299 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Mombasa Appeal E009 of 2026 M Mbarũ, J May 18, 2026 Between Pharel Ogola Appellant and Moi University Respondent (Being an appeal from the judgment of Hon. Dominica Nyambu delivered on 17 December 2025 in Mombasa MCELRC No. E295 of 2024) Judgment 1.The background to the appeal is a claim filed by the respondent before the lower court against the appellant. His case was that he was employed by the appellant as a lecturer in January 2014, earning Ksh. 67,000 per month. He was teaching units in:i.Labour laws BBM 476ii.Intermediate Micro-economic ECO 210iii.Intermediate Macro-economic ECO 110. 2.The respondent’s case was that, in August 2021, when the new semester began, he noticed he had not been assigned any duties. He enquired of the respondent, but received no response. His salary was stopped, and his employment was terminated. There was no due process, and no reasons were given for the summary action. He claimed the following dues:a.6 months' salary arrears Ksh. 402,000.b.8 years of untaken leave days Ksh. 536,000.c.Notice pay Ksh. 67,000.d.Service pay for 8 years Ksh. 946,800.e.House allowance for 8 years Ksh. 964,800.f.12 months' compensation Ksh. 804,000.g.Costs of the suit.There was no response to the claim. 3.The learned magistrate heard the parties and held that there was no proof of an employer-employee relationship and hence the claims made were without merit. The trial court dismissed the claim with costs to the respondent. 4.Aggrieved by the judgment, the appellant contests that the learned magistrate erred in law and fact in finding that there was no employer-employee relationship and hence dismissed the claim with costs. The court overlooked the correct legal principles and judicial precedent, and the evidence produced to support the case for wrongful termination of employment. This was despite the trial court establishing that there were stamped timetables and various letters for the respondent assigning the appellant duties. The trial court ignored the fact that there was no response to challenge the claims, despite service, and that the respondent entered only an appearance. 5.On the appeal, only the appellant attended and filed a written submission. 6.The appellant submitted that, in ordinary civil cases, a case may be determined in favour of a party who pursues the court, on the basis that the allegations pleaded in his case are more likely than not to have taken place. The opposing party has to establish its case on a balance of probabilities as held in William Kabogo Gitau v George Thuo & 2 others [2010] 1 KLR. 7.The appellant testified before the trial court that he was employed by the respondent in 2014. There was no written contract. He was assigned various duties as a lecturer, and there are various records to confirm the same. No response was filed to challenge the employment relationship, and the trial court overreached in finding that none existed. Over the years, the appellant had been paid by the respondent, and he submitted evidence of such payments until 2021, when payments and the allocation of duties ceased without any notice or reason. 8.In the case of Njoroge v Moi University [2024] KEERC, the court held that where the employment relationship was not contested, there was evidence of payment of salaries over the years, the duty to file work records was on the employer under section 10(6) and (7) of the Employment Act (the Act). Without filing a response, the respondent, as the employer, failed to demonstrate to the court that no employment relationship existed. 10.In this case, the trial court erred in failing to assess the claims on the merits. The appeal should be allowed to reassess the claim and award as pleaded for notice pay, compensation, leave days, house allowance, service pay, and costs of the suit. Determination 11.This being a first appeal, the court is required to reassess the record, review the findings and make its conclusions. However, take into account that the trial court had the opportunity to hear the witness testify. 12.What stands out in this appeal is that the respondent did not file a response in the trial court. There were only Memoranda of Appearance and a change of Advocates. The claim before the trial court remained unopposed.There was also no attendance in this appeal. 13.In employment claims, the employer's attendance is crucial for one major purpose. Under sections 10(6) and (7) of the Act, the employer bears the legal duty to produce records. Unlike other commercial disputes, which place the burden on the party alleging a matter, in employment disputes, where the employee is the claimant, the employer bears the burden of producing work records. This is in recognition of the employer's right to lock out the shop floor. Hence, when a suit such as the one that the appellant filed before the trial court, under section 10(7) of the Act, the employer should submit all the necessary work records:(6)The employer shall keep the written particulars prescribed in subsection (1) for a period of five years after the termination of employment.(7)If in any legal proceedings an employer fails to produce a written contract or the written particulars prescribed in subsection (1) the burden of proving or disproving an alleged term of employment stipulated in the contract shall be on the employer. 14.In this case, the trial court, and in this appeal, the respondent denied the court's access to the necessary work records. The appellant's claims went unchallenged. 15.The applicant’s case was that he was employed by the respondent as a lecturer in 2014. He worked diligently until August 2021, when he was not assigned duties, and his salary stopped. Despite making enquiries, there was no response. This resulted in an unwelcome and unfair termination of employment. 16.The appellant emphasised in his evidence that he was not issued with an employment contract. 17.Oral contracts of employment are allowed under sections 7, 8 and 9 of the Act. However, under section 10 of the Act, the employer should issue the written contract of employment within 2 months after the oral contract has been issued. This is not only to secure the employee but the employer in a matter such as herein, for the court to appreciate the terms and conditions of employment as held in Nyawara v Strategic Outcome Consultants Ltd [2026] KEELRC 673 (KLR) and Casmir Nyankuru Nyaberi v Mwakikar Agencies Limited [2016] KEELRC 1323 (KLR). 18.In this regard, the respondent failed in its legal duty. The evidence of the appellant should have been addressed thus. The court found there was an employment elation based on the pleadings, evidence and records of undertaking work for the respondent from 2014 to August 2021. 19.Under section 47(5) of the Act, an employee must first present prima facie evidence of unfair or unjustified termination of employment before the burden shifts to the employer to justify the termination, as held in Kenya Building Construction, Timber & Furniture Industries Employees Union v Vaghjiyani Enterprises Limited [2026] KEELRC 577 (KLR) and Wairi v Oracle Technology Systems Kenya Limited [2026] KEELRC 1024 (KLR). Thus, the employee must lay a good foundation for a prima facie case of unfair dismissal, which, in this case, the appellant did, by illustrating that he was employed by the respondent and that his employment was terminated without due process. Then the burden shifted to the Respondent to justify the dismissal. In this case, there was no response. 20.It is also now a well-established principle that for termination to pass the fairness test, there should be both substantive and procedural fairness, as held in Walter Ogal Anuro v Teachers Service Commission [2013] eKLR. 21.As outlined above, without any response or work records from the respondent, the court is only left with the evidence from the appellant. The trial court failed to address these aspects and, in error, dismissed the case. 22.This court finds there was an unlawful and unfair termination of employment.On the claims made, compensation is due together with notice pay. 23.The appellant was earning Ksh. 67,000 per month, which is due in notice pay. 24.The appellant served the respondent from 2014 to 2021, a period of 7 years. There is no poor record submitted. Compensation at 6 months is hereby found appropriate at Ksh. 67,000 x 6 = Ksh. 402,000. 25.Regarding the claim for 8 years of unclaimed leave days, the appellant defines the respondent as an academic institution. This is classified as an institution that allocates educational breaks, factoring in time off and hence leaves for the employee. 26.On the claim for 6 months' salary arrears, under sections 17 and 19 of the Act, all pay for work done is due. Under section 18 of the Act, for whatever reason that applies leading to termination of employment, the employee is entitled to his pay for the time worked.The claim for salary arrears is due at Ksh. 402,000. 27.Regarding service pay, there was no written contract; the respondent did not submit any payment statement confirming the appellant's registration, nor did they remit the statutory dues. Under sections 35(5) and (6) of the Act, service pay is due for 7 full years worked, at 15 days per year, all at Ksh. 234,500. 28.On the claim for house allowance, the salary paid was Ksh. 67,000 above the minimum wage. Without a written contract, the wage baseline is the general wage that is lower than what was paid. 29.In this regard, house allowance is not due to an employee who is paid above the Minimum Wage Orders. 30.The appeal is successful, the application is entitled to the costs before the trial court and this appeal. 31.Accordingly, judgment in Mombasa CMELRC No. E295 of 2024 is set aside. Judgment is hereby entered for the appellant against the respondent in the following terms:a.Compensation Ksh. 402,000.b.Notice pay Ksh. 67,000.c.Service pay 234,500.d.Costs of the suit before the trial court and the appeal. DELIVERED IN OPEN COURT AT NAIROBI, THIS 18TH DAY OF MAY 2026M. MBARŨJUDGEIn the presence of:Court Assistants: Catherine, Kemboi and Omar……………………………………………… and…………………………………..…………..