Steel Makers Limited v Jackson Makau Kaswii [2018] KECA 426 (KLR)
The bottom line
#Kenya's Court of Appeal threw out an unfair termination award because the worker never testified — denied facts need live evidence, not paperwork.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondent proved his case to the required standard while noting the parties only relied on the pleadings being the memorandum of claim which was strenuously denied and a defective witness statement.
- 2.Whether the respondent was entitled to the awards under the three headings being, notice, damages for six months and leave for five years.
Key legal issues
#Whether the respondent proved unfair termination to the required standard on pleadings alone
He did not. The claim was denied, the respondent's witness statement was defective, and the trial court could not resolve the conflicting accounts without viva voce evidence; the burden of proof on the asserted facts was not discharged.
The Court held that where the respondent alleged termination and the employer denied it and asserted desertion, a factual dispute existed that could only be resolved by viva voce evidence. Under Sections 107-109 of the Evidence Act, a party asserting facts bears the legal burden of proving them; absent evidence, the Judge could not determine which set of facts to believe merely from pleadings and witness statements, one of which was defective and written by a stranger to the proceedings.
Entitlement to terminal benefits of notice pay and leave
The awards of one month's salary in lieu of notice and leave for 5 years at 21 days per year were justified because the employment was admitted.
The appellant admitted the respondent was its employee and stated that had he returned to work he would have continued in employment. The Court accordingly found the notice and leave awards justified and upheld them, while setting aside only the compensation for unfair termination.
Legal principles established
#- On a first appeal, the appellate court must reconsider the entire evidence, evaluate it afresh and draw its own conclusions, while making allowance for not having seen or heard the witnesses.
- A trial court cannot resolve a factual dispute between the parties' competing accounts merely by looking at the pleadings; where a set of facts is denied, the party asserting it bears the legal burden to prove it by evidence.
- Under Section 43(1) of the Employment Act, the employer must justify the reason or reasons for termination, failing which the termination is deemed unfair; termination may be substantively and/or procedurally unfair.
Court orders
#- 1.Appeal partially succeeds
- 2.Award of Ksh.88,764 being six months' salary as compensation for unfair termination set aside
- 3.Award of Ksh.74,539 (one month's salary in lieu of notice of Ksh.14,794 and leave for 5 years at the rate of 21 days per year of Ksh.59,745) upheld
- 4.Each party to bear their own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Court at Mombasa
- E&LRCC No. 382 of 2016
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (appeal as of right from the Employment and Labour Relations Court); notice of appeal under Rule 84 of the Court of Appeal Rules was discussed in relation to timeliness.
Relief refused
#Upholding of the six months' salary compensation award for unfair termination
The trial court could not determine the contested facts on pleadings alone; the respondent failed to adduce evidence to discharge the burden of proving unfair termination on a balance of probabilities.
Costs
Each party to bear their own costs of this appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
this Court must reconsider the evidence, evaluate itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witness and should make due allowance in that respect
Where it was the word of the respondent against the appellant, we think there was a dispute on whether the respondent was unfairly terminated which could only be resolved by way of viva voce evidence.
In conclusion, this appeal partially succeeds. We set aside the award of Ksh.88,764 but uphold the award for the total sum of Ksh.74,539.
we order each party to bear their own costs of this appeal as we do not wish to set them against each any more.
Issues in the judgment
#Internal inconsistency on the notice-of-appeal timeline: judgment is stated as delivered on 28th July 2017, but counsel submitted the notice of appeal was filed on 14th July 2017 'after 16 days', and further referred to public holidays on 'the 7th and 8th August, 2017', which do not fit either date.
The leave award figure is inconsistently rendered: paragraph [4] records it as 'Ksh 59,9745' while paragraph [13] and the final orders record 'Ksh.59,745'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Steel Makers Limited v Jackson Makau Kaswii [2018] KECA 426 (KLR)", Case Analysis (2018). Civil Appeal No 73 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/426/eng@2018-06-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.