Gilgil Telecoms Industries Limited v Duncan Nderitu & 57 others [2016] KECA 151 (KLR)
The bottom line
#Kenya's Court of Appeal upheld improved employment benefits for 56 former workers but cancelled their arrears award because the specific amounts were never pleaded or proved.
What this practically means
#Executive summary
#Key legal issues
#Whether delay in delivering judgment exceeding 60 days under Order 21 Rule 1 renders the judgment a nullity
It does not. The rule prescribes no consequence for non-compliance; declaring such judgments void would cause more injustice than justice.
The Court adopted its earlier reasoning under the equivalent former Order XX Rule 1: the rule is important but its breach should be met with censure of the judicial officer rather than nullification, as a lot of time and resources spent in litigation would be wasted. The delay here, though not condoned, was not such as to warrant nullity.
Whether the respondents were employees of Gilgil Telecoms (1st appellant) or Telkom Kenya (2nd appellant)
The respondents were the 1st appellant's employees; no contract of service existed with the 2nd appellant, whose payroll services did not alter that reality.
No respondent produced a contract of service with the 2nd appellant; contracts of service on record showed absorption or appointment by the 1st appellant, some before the 2nd appellant was established in 1999. Pay slips printed by the 2nd appellant until 2001 merely reflected payroll assistance pending the 1st appellant's system being set up.
Whether the benefits under the revised terms of service extended to the respondents despite their being the 1st appellant's employees
Yes. The two appellants, though separate legal entities, operated as one entity, justifying lifting the corporate veil; the declaratory order was properly granted.
The Union represented unionisable employees of both companies; circulars harmonizing terms applied across the board including to management of the 1st appellant; the 1st appellant's Board comprised the 2nd appellant's officers and permanent secretaries; and the 2nd appellant's human resource department executed the terminations and issued certificates of service, evidencing management control.
Whether the court could lift the corporate veil although the issue was said not to be pleaded
A court may base a decision on an unpleaded issue where it appears from the course followed at trial that the issue was left to the court for determination; here the character and nature of the two appellants arose for determination.
Following Attorney General v Halal Meat Products and Odd Jobs v Mubia, the Court found the exception applicable; further, determining whether the benefits extended to the respondents necessarily entailed consideration of the character, nature and dealings between the appellants, as endorsed in Merchandise Transport Ltd v British Transport Commission.
Whether the arrears of salary and house allowance were special damages requiring specific pleading and strict proof
Yes; the respondents did not particularize the figures, and the trial Judge erred in relying on unexplained schedules, so the award of arrears was set aside.
The respondents sought only an order for payment of accrued arrears without tabulating the figures; the schedules produced by PW3 were of unclear basis and authorship. Cases are decided on actual evidence tendered, and proof of special damage cannot be supplied by pleadings or submissions.
Whether the trial court improperly framed issues for determination
The issues were relevant and arose from both the pleadings and the evidence adduced at trial.
Pursuant to Order XIV Rule 3 of the former Civil Procedure Rules, a court has power to frame issues it considers pertinent. The three issues framed by the trial court went to employment, coverage of the negotiated terms, and entitlement to arrears, all arising from pleadings and evidence.
Legal principles established
#- A judgment delivered out of time contrary to Order 21 Rule 1 of the Civil Procedure Rules is not, for that reason alone, a nullity; non-compliance calls for administrative censure, not vitiation of the judgment.
- A court may decide an unpleaded issue where, from the course followed at trial, the issue has been left to the court for determination.
- Special damages must be pleaded with as much particularity as circumstances permit and must be strictly proved; particulars not known at filing may only be introduced by amending the plaint.
- In determining whether to lift the corporate veil between a holding and subsidiary company, the court may go behind the legal entity and consider the character, nature and dealings between the companies, including control of management and common operations.
- On a first appeal, the court has a primary role to reassess and re-evaluate the evidence and reach its own conclusions, bearing in mind it neither saw nor heard the witnesses.
Court orders
#- 1.The declaration by the High Court that the respondents were entitled to the benefits under the revised terms of service is upheld
- 2.The order and award in favour of the respondents in respect of accrued salaries and house allowance arrears is set aside
- 3.Each party shall bear its own costs in this appeal
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 165 of 2006
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal over appeals from the High Court
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (5)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Transport and Allied Workers Union v Kenya Bus Service Limited & another (Cause 68 of 2006) [2024] KEELRC 2481 (KLR)[2024] KEELRC 2481 (KLR)11 Oct 2024
- Mulima ((Suing on behalf of Benjamin Okwaro Ojode)) v Odiro (Environment and Land Appeal E008 of 2022) [2024] KEELC 4844 (KLR)[2024] KEELC 4844 (KLR)20 Jun 2024followed
- Robert Njuguna Karanu v Economic Housing Group Ltd & 4 others [2021] KEELRC 1272 (KLR)[2021] KEELRC 1272 (KLR)8 Jul 2021
- Mhubiri Productions Ltd v Safaricom Ltd & another [2020] KECA 74 (KLR)[2020] KECA 74 (KLR)4 Dec 2020followed
- Jackson Awuor & 8 others v Registered Trustees of the Sisters of Mercy (Kenya) t/a “The Mater Misericordia Hospital” [2019] KEELRC 430 (KLR)[2019] KEELRC 430 (KLR)25 Oct 2019
Cite this brief
#Cite this brief
Caselaw, "Gilgil Telecoms Industries Limited v Duncan Nderitu & 57 others [2016] KECA 151 (KLR)", Case Analysis (2016). Civil Appeal No. 147 of 2013 (consolidated with Civil Appeal No. 137 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/151/eng@2016-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.