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Court of AppealPartially AllowedCivil Appeal No. 70 of 2015· [2016] KECA 17 (KLR)

Comarco Properties (Epz) Limited v Transport & Allied Workers Union [2016] KECA 17 (KLR)

Court of Appeal
22 April 2016
2,695 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal threw out a Kshs 4.1 million employment award because the worker never testified, proving courts need real evidence, not just written submissions.

What this practically means

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Executive summary

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The appellant, Comarco Properties (EPZ) Limited, appealed against a decision of the Employment and Labour Relations Court at Mombasa (Rika, J.) which had ordered it to pay a former employee, a member of the respondent union, service pay of Kshs.2,030,769 and commission of Kshs.2,135,941, totaling Kshs.4,166,710. The claim, initially lodged in Nairobi, had been part-heard before Mukunya, J., transferred by consent to Mombasa, and directed by Radido, J. to commence de novo. At the resumed hearing counsel for the claimant called no witnesses, relying on the statement of claim and submissions, while the appellant called two witnesses. Part of the appellant's evidence was taken by Radido, J., but the remainder was taken by Rika, J. in circumstances not disclosed on the record. The Court of Appeal held that the determination of the appeal need not turn on the merits because the record revealed a litany of procedural and jurisdictional irregularities vitiating the trial court's decision: the claimant closed his case without tendering any evidence and was never cross-examined; his counsel's submissions merely reproduced his witness statement and amounted to giving evidence; the trial court relied on that statement without any order dispensing with oral hearing, contrary to Rule 24 of the Industrial Court Rules; the de novo order was breached by borrowing heavily from evidence before Mukunya, J.; and the takeover of the part-heard claim by Rika, J. without self-evident reasons on the record raised jurisdictional questions. The Court entertained these issues suo moto as they touched on procedure and jurisdiction, allowed the appeal, set aside the judgment and decree, and ordered the claim heard afresh before another ELRC judge in Mombasa other than Rika, Radido and Mukunya, JJ., with no order as to costs. The substantive disputes over the discharge voucher, privity of contract, commission entitlement and union representation were left for determination at the retrial.

Key legal issues

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01

Whether submissions standing in place of testimony can found a judgment for a claimant

Holding

No. A claimant who closes his case without calling evidence or being subjected to cross-examination has tendered no evidence, and a trial court cannot find in his favour on the basis of submissions that merely restate the witness statement.

Reasoning

The claimant's testimony before Mukunya, J. was incomplete and the matter was directed to start afresh. At the resumed hearing counsel for the claimant stated he would call no witnesses and would rely on the statement of claim and submissions. The Court held that submissions which are no more than the witness statement amount to giving evidence from the bar, depriving the appellant of cross-examination, leaving no evidence on which the claim could succeed.

p. 4
02

Whether a trial judge may rely on a witness statement without the maker testifying

Holding

No, absent a specific order dispensing with oral hearing; untested statements cannot be the basis of a decision.

Reasoning

Under Rule 24 of the Industrial Court Rules evidence is given orally unless the judge orders otherwise by affidavit or written statement. No such order was recorded, and the appellant had in any event testified orally through witnesses. Relying on the claimant's unconfirmed statement, without the maker taking the stand and affirming it or being cross-examined, was a procedural irregularity vitiating the judgment.

p. 4
03

Whether a judge may take over a part-heard case from a colleague without recorded reasons

Holding

The circumstances of such a takeover must be self-evident on the record; where they are not, jurisdictional questions arise.

Reasoning

While it is not unheard of for a judge to take over a matter from another - for reasons such as death, incapacity, exit from judicial service or transfer - the reasons must appear on the record. Here Radido, J. took evidence for the appellant but Rika, J. later took charge in circumstances the record did not disclose, which the Court held was highly irregular and raised jurisdictional questions.

p. 5

Legal principles established

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  • A case ordered to be heard de novo must start afresh, without reliance on evidence tendered in the part-heard proceedings before the earlier judge
  • Hearing of a claim must proceed by way of oral testimony unless the judge, by a specific order, directs that it be canvassed on affidavits, written memoranda and submissions; and a party may not close its case without tendering evidence
  • Where one judge takes over a part-heard matter from another, the reasons must be self-evident on the record; their absence raises jurisdictional questions
  • An appellate court may entertain and decide procedural and jurisdictional issues sua moto even where the parties did not canvass them

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment and decree of the trial court set aside
  3. 3.Claim to be heard afresh before any other Judge of the Employment and Labour Relations Court, Mombasa, other than Rika, Radido and Mukunya, JJ.
  4. 4.No order as to costs

Authorities

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Legislation

  • Public Procurement and Disposal ActSections 38, 40
  • Labour Relations ActDefinition of contract of service
  • Industrial Court RulesRule 24
On appeal from
Employment and Labour Relations Court at Mombasa
E.L.R.C.C. No. 118 of 2012
Jurisdiction invoked
First appellate jurisdiction over the Employment and Labour Relations Court (Court of Appeal, Civil Appeal No. 70 of 2015)

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, "Comarco Properties (Epz) Limited v Transport & Allied Workers Union [2016] KECA 17 (KLR)", Case Analysis (2016). Civil Appeal No. 70 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/17/eng@2016-04-22

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