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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No. 55 of 2017

Victor Waudi & another v Sammy Nzioka Bita & 4 others [2018] KECA 4 (KLR)

Court of Appeal
12 July 2018
2,651 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.670,150 employment award because the workers never proved who actually employed them.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Mombasa (Visram, Karanja and Koome, JJ.A) from the judgment of Makau, J. of the Employment and Labour Relations Court delivered on 28th April 2017 in Cause No. 397 of 2014, in which compensation for unfair termination and lack of notice amounting to Kshs.670,150 plus costs and interest was awarded against Victor Waudi and Casablanca Holdings Limited. The central question was whether an employer/employee relationship existed between the appellants and the four respondent claimants, because its absence would divest the ELRC of jurisdiction. The Court held that the respondents testified that they were employed by the 1st appellant's late father, Joseph Okoth Waudi, whose businesses were still being run in his name as shown by the 2012 and 2013 liquor licences; there was no evidence of a takeover of the employment by Casablanca Holdings Limited or that Victor Waudi was its director, and no such link was pleaded. Applying Galaxy Paints and Gandy v Caspair, the Court held that parties must be confined to their pleadings, and following Malelu Muthama v Kay Construction it held that an employee must prove the fact of employment. The Court also approved the same Judge's earlier contrary decision in Kazungu Kalama Nguma v Victor Okoth Waudi as the correct position, and found the evidence of dismissal instructions to be inadmissible hearsay. The appeal was allowed, the judgment of 28th April 2017 was set aside in its entirety, and each party was ordered to bear its own costs of the appeal and the proceedings below. The decision binds subordinate courts on the burden of proving employment and confinement to pleadings.

Key legal issues

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01

Existence of an employer/employee relationship between the appellants and the respondents

Holding

The appeal was allowed because there was no evidence that the appellants employed the respondents; the respondents were employed by the 1st appellant's late father and failed to prove any takeover by the 2nd appellant or directorship of the 1st appellant

Reasoning

The respondents testified on oath that they were employed by the 1st appellant's father, Joseph Okoth Waudi, who continued operating the businesses under his name as shown by the liquor licences for 2012 and 2013. The pleadings never linked the 1st appellant to the 2nd appellant as director, and the trial court's finding of a takeover in 2009 was not a correct reflection of proceedings, was hotly contested, and rested on hearsay regarding the dismissal instructions.

p. 3
02

Whether judgment may be entered on matters outside the pleadings

Holding

The court applied Galaxy Paints to hold that parties must be confined to their pleadings and judgment may only be pronounced on issues arising from them

Reasoning

Relying on Galaxy Paints Company Ltd v Falcon Guards Ltd and Gandy v Caspair, the court held that issues flow from the pleadings and, unless pleadings are amended, the trial court may only pronounce judgment on issues arising from the pleadings or framed by the parties. Deciding against a party on matters outside the pleaded issues amounts to an error on the face of the record. The respondents changed course in testimony without amending pleadings.

p. 3
03

Whether the compensation awarded was excessive

Holding

This issue became moot as the entire judgment was set aside; the court did not make a distinct finding on quantum

Reasoning

The appellants raised the quantum of the Kshs.670,150.00 award as a ground, but having found that no employer/employee relationship existed, the court set aside the judgment in its entirety and did not engage separately with the assessment of damages. The question of excessive compensation was subsumed in the jurisdictional finding.

p. 4

Legal principles established

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  • Issues for determination in a suit flow from the pleadings; a trial court may only pronounce judgment on issues arising from the pleadings or framed by the parties, and parties must be confined to their pleadings unless amended
  • An employee must prove the fact of employment, particularly where employment is denied by the alleged employer
  • A person merely on site supervising a deceased person's business is not clothed with locus standi to be sued on behalf of the deceased's estate

Court orders

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  1. 1.The appeal is allowed
  2. 2.The impugned judgment of the ELRC dated 28th April 2017 is set aside in its entirety
  3. 3.Each party bears its own costs of the appeal and before the ELRC
On appeal from
Employment and Labour Relations Court at Mombasa
Labour Relations Court Cause No. 397 of 2014
Jurisdiction invoked
First appeal from the Employment and Labour Relations Court under the Court of Appeal's appellate jurisdiction (Rule 29(1)(a) of the Court of Appeal Rules invoked)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Victor Waudi & another v Sammy Nzioka Bita & 4 others [2018] KECA 4 (KLR)", Case Analysis (2018). Civil Appeal No. 55 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/4/eng@2018-07-12

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