Comarco Properties (Epz) Limited v Transport & Allied Workers Union [2016] KECA 17 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether submissions standing in place of testimony can found a judgment for a claimant
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.
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.
Whether a trial judge may rely on a witness statement without the maker testifying
No, absent a specific order dispensing with oral hearing; untested statements cannot be the basis of a decision.
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.
Whether a judge may take over a part-heard case from a colleague without recorded reasons
The circumstances of such a takeover must be self-evident on the record; where they are not, jurisdictional questions arise.
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.
Legal principles established
#- 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
#- 1.Appeal allowed
- 2.Judgment and decree of the trial court set aside
- 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.No order as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.