Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No. 2 of 2016· [2017] KECA 366 (KLR)

Kenya National Union of Teachers v George Wesonga Ojwang [2017] KECA 366 (KLR)

Court of Appeal of Kenya
28 July 2017
GKG. B. M. KariukiFSF. SichaleSKS. ole Kantai
5,142 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal ruled that a union official could not rely on a private agreement to double his terminal benefits, confirming submissions by lawyers are not evidence.

What this practically means

#

Executive summary

#
KNUT appealed against a decision of the Employment and Labour Relations Court (Rika, J.) awarding its former National Chairperson, George Wesonga Ojwang, Shs. 16,616,209.70 as the balance of terminal dues plus costs. The respondent had been employed by KNUT from 1986 as Executive Secretary of the Busia Branch, received terminal benefits on relinquishing that post in 2004 (recovering a balance by suit), and thereafter served as a national official until retiring in 2011. His claim rested on an agreement of 2nd February 2011 he concluded with KNUT's Acting Secretary General and Acting National Treasurer computing benefits on 25 years of service, and on a contention that Shs. 5.8 million paid to him was bonuses for work done, not deductible advances. The Court of Appeal, as a first appeal, allowed the appeal. It held that no evidence showed the ad hoc committee's proposed amendments to the Staff Terminal Benefits Scheme were adopted by KNUT's Terms and Conditions of Service Committee, so the 2nd February 2011 agreement was self-serving and could not vary the scheme. Estoppel and unjust enrichment barred the respondent from recovering benefits for the 1986-2011 period already paid. The bonus claim failed because it rested solely on statements in counsel's submissions; applying Daniel Toroitich arap Moi v Stephen Mwangi Muriithi, submissions do not constitute evidence. The Court set aside the judgment and award, granted orders in terms of prayer (C) of the memorandum of appeal, and awarded costs to KNUT. The judgment binds lower courts on the evidentiary status of submissions and the proof required to vary employment benefit schemes.

Key legal issues

#
01

Validity of the 2nd February 2011 terminal benefits agreement

Holding

The agreement was invalid and self-serving; it could not amend the STBS because no evidence showed the proposed amendments by the ad hoc committee were adopted by the Terms and Conditions of Service Committee or promulgated.

Reasoning

The court found the ad hoc committee's report merely proposed amendments for adoption by the Terms and Conditions of Service Committee. The respondent tendered no evidence that this committee met, discussed and adopted the proposals, nor that the 2nd February 2011 agreement was adopted by that committee. Without such internal adoption, the amendment substituting 25 years for 15 years of service was never promulgated, and the agreement could not bind KNUT.

p. 7
02

Continuity of service and estoppel

Holding

Estoppel barred the respondent from claiming terminal benefits spanning 1986 to 2011, having already been paid terminal benefits for the pre-2004 period pursuant to the decree in Civil Suit No. 13491 of 2004; allowing double recovery would be unconscionable and unjust enrichment.

Reasoning

The respondent had retired as Executive Secretary of the Busia Branch, demanded and received terminal benefits, and sued to recover the balance of Shs. 459,852. Having recovered those sums by decree, he was estopped from asserting entitlement to benefits for the same period on his 2011 retirement. The Court also found the 2nd February 2011 agreement self-serving and incapable of supporting a 25-year computation.

p. 7
03

Whether submissions can constitute evidence of the Shs. 5.8 million bonus claim

Holding

Submissions do not constitute evidence; the respondent's bonus claim failed for want of proof, so the appellant's assertion that the Shs. 5.8 million was advance payments deductible from terminal benefits stood.

Reasoning

The Court applied its own decision in Daniel Toroitich arap Moi v Stephen Mwangi Muriithi, holding that submissions are only parties' 'marketing language' and cannot substitute for evidence. The bonus claim appeared nowhere in the pleadings, and the disbursement pattern of the Shs. 5.8 million in installments did not support the bonus characterisation. The claim was therefore unsupported and the deduction was proper.

p. 8

Legal principles established

#
  • Submissions made by counsel cannot take the place of evidence and cannot form the basis of a finding by a court.
  • A party who alleges that a payment was made for a particular consideration (e.g. bonuses for work done) bears the onus of proving that allegation by evidence.
  • On a first appeal, the court is enjoined to give the parties a retrial by re-evaluating the evidence, per Selle v Associated Motor Boat Co.
  • An official of an organisation cannot rely on a self-serving agreement made with other officials that was never adopted through the organisation's internal amendment procedures; and double recovery of benefits already received is unconscionable and amounts to unjust enrichment.

Court orders

#
  1. 1.Appeal allowed
  2. 2.Impugned judgment and award of the Employment and Labour Relations Court (Rika, J.) dated 20th December 2013 set aside
  3. 3.An order granted in terms of prayer (C) of the appellant's memorandum of appeal dated 6th January 2016
  4. 4.Costs of the appeal awarded to the appellant

Authorities

#

Legislation

  • Trade Unions Actnull
  • Court of Appeal RulesRule 75

Cases cited (2)

  • Daniel Toroitich arap Moi versus Stephen Mwangi Muriithi
    [2014] eKLR
  • Selle v. Associated Motor Boat Co.
    [1968] E.A. 123
On appeal from
Employment and Labour Relations Court of Kenya, Nairobi
Industrial Cause No. 282 of 2012
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules (notice under Rule 75 of the Court of Appeal Rules) against a decision of the Employment and Labour Relations Court

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya National Union of Teachers v George Wesonga Ojwang [2017] KECA 366 (KLR)", Case Analysis (2017). Civil Appeal No. 2 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/366/eng@2017-07-28

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