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Court of AppealPartially AllowedCivil Appeal No. 299 of 2015· [2017] KECA 292 (KLR)

Nduta Mbile v John Gachau Gitonga [2017] KECA 292 (KLR)

Court of Appeal
29 September 2017
AVAlnashir VisramWKW. KaranjaMartha Karambu KoomeM. K. Koome
3,384 words in judgment
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The bottom line

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Kenya's Court of Appeal slashed an unfair termination award because the trial judge gave no reasons and the employee proved only part of his claim.

What this practically means

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Executive summary

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This was a first appeal from a judgment of Ongaya J. of the Employment and Labour Relations Court at Nairobi in Industrial Cause No. 19 of 2011, delivered on 28th August 2012, in which the respondent's entire claim of Kshs 498,228.35 for unfair termination and related employment benefits was allowed without reasons. The respondent claimed he was employed as a monthly-paid night watchman from November 2005 to November 2009; the appellant maintained he was a daily casual worker paid Kshs 300 per night who worked less than two months before his contract ended through absence due to illness. The Court of Appeal, coram Visram, Karanja and Koome JJ.A, identified two issues: whether the claim was proved, and whether the trial judge erred in failing to give reasons. The Court held that the failure to give reasons or evaluate the evidence was a fundamental error, since parties are entitled to reasons for a judgment. However, the Court endorsed the trial judge's finding that an employment contract existed, because the employer bore the statutory duty to keep and produce employment records and produced none showing daily payment; the respondent was therefore a monthly, not casual, employee. On re-evaluation, the Court found no proof of unlawful termination damages, underpayment, overtime or four years' leave, but allowed notice pay, five days' pay, one year's leave and four years' severance pay totalling Kshs 32,972. The appeal partially succeeded; the trial judgment and decree were set aside and substituted accordingly, with no orders as to costs given the nature of the dispute. The respondent did not participate in the appeal despite service.

Key legal issues

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01

Duty of a trial judge to give reasons and evaluate evidence

Holding

The trial judge's failure to give reasons or evaluate the evidence was a fundamental error warranting appellate interference.

Reasoning

The Court reproduced the entire extempore judgment and found it gave no reasons and undertook no evaluation of the evidence. Parties are entitled to know why a judge arrived at a decision; giving reasons articulates the factual and legal basis of the ruling. The judge did not identify which parts of the appellant's evidence were inconsistent, and made no findings on the basis for each head of claim.

p. 4
02

Employer's duty to keep employment records and its evidentiary consequence

Holding

The duty to keep employment records lies on the employer; failure to produce records showing daily payment supports a finding of monthly employment.

Reasoning

The dispute was whether the respondent was a daily casual worker or a monthly employee. The judge's finding of an employment contract rested on the appellant's failure to produce employment records. The Court declined to fault that finding, and itself concluded the respondent was employed on a monthly basis since no daily-wage records were produced.

p. 5
03

Proof of the individual heads of claim

Holding

Only notice pay, 5 days worked, one year's annual leave and severance pay were proved; the claims for unlawful termination damages, underpayment, overtime and 4 years' leave failed for want of proof.

Reasoning

The Court re-evaluated the evidence on a first appeal. No evidence supported underpayment (the legal notices were not produced or verified), overtime, or four years of leave. The unlawful termination claim was unproved and the Section 49(1) Employment Act factors were not considered by the trial judge. Severance pay for four years and one year's leave were allowable.

p. 5

Legal principles established

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  • Every judgment in a defended suit must contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for the decisions; parties are entitled to reasons.
  • On a first appeal, the Court of Appeal must re-evaluate the evidence and draw its own conclusions, subject to the caveat that it did not hear or see the witnesses.
  • The employer bears the legal duty to keep and produce records of employment; where the employer produces no records to show daily payment, the court may find a monthly employment relationship.
  • Maximum awards of compensation for unfair termination without assigning reasons and without evaluating the Section 49 factors constitute error.

Court orders

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  1. 1.Judgment of the trial court dated 28th August 2012 and the decree issued on 18th September 2012 set aside
  2. 2.Substituted judgment awarding: one month's salary in lieu of notice Kshs 7,865; 5 days worked in November 2009 Kshs 1,512; annual leave for one year Kshs 7,865; severance pay for 4 years Kshs 15,730; total Kshs 32,972
  3. 3.No orders as to costs

Authorities

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Legislation

  • Court of Appeal RulesRule 86(1)
  • Employment ActSection 49(1)
  • Legal Notice No. 42 of 1st May 2005 (minimum wages)

Cases cited (7)

  • Mary Njoki v John Kinyanjui Mutheru
    [1985] eKLR
  • S. M. v E. N. B.
    [2015] eKLR
  • MBOGO –V- SHAH
    [1968] E.A. 93
  • United States International University vs. Eric Rading Outa
    [2016] eKLR
  • Selle and Another V Associated Motor Boat Company Ltd and Others
    [1968] 1 EA 123 (CAZ)
  • Watt v Thomas
    [1947] AC 484
  • Abdul Hameed Saif v. Ali Mohamed Sholan
    (1955), 22 E.A.C.A. 270
On appeal from
Employment and Labour Relations Court at Nairobi (Industrial Court)
Industrial Cause No. 19 of 2011
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules (appeal filed pursuant to leave granted on 20th November 2015)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nduta Mbile v John Gachau Gitonga [2017] KECA 292 (KLR)", Case Analysis (2017). Civil Appeal No. 299 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/292/eng@2017-09-29

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