James K. Kamau v Nairobi City Council [2018] KECA 625 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed an employee's appeal because claims raised only in written submissions, without pleading or evidence, cannot win court awards.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELRC ought to have ordered the appellant's reinstatement
Reinstatement was refused: there was no prayer for reinstatement in the pleadings, and a lapse of 9 years plus the appellant's imminent retirement at 60 made the remedy impracticable and inappropriate
Section 49(3) of the Employment Act permits reinstatement or re-engagement, but sub-section (4) requires regard to the circumstances. The appellant's pleadings contained no express prayer for reinstatement, so the judge could not unilaterally conclude he wished to be reinstated. Further, 9 years had elapsed, the position of Market askari was easy to fill, and the appellant was about to attain the public service retirement age of 60, rendering reinstatement impracticable.
Whether the trial court should have awarded additional sums raised only in the appellant's written submissions
The learned judge was right to disregard the additional sums; a court is confined to the pleadings and cannot award relief never pleaded or canvassed at trial
The submissions were filed after close of proceedings and did not form part of the appellant's case. The additional claims were neither pleaded nor canvassed, no evidence was led in support, and the respondent had no opportunity to rebut them. Drawing on Malawi Railways v Nyasulu, Adetoun Oladeji and Galaxy Paints, the court reaffirmed that parties are bound by their pleadings and the court cannot determine issues not placed before it.
Whether the appellant was entitled to severance pay
Severance pay is a statutory entitlement on redundancy under section 16A of the Employment Act; it does not arise on wrongful termination
Section 16A entitles an employee declared redundant to severance pay of not less than 15 days' pay per completed year of service. The appellant's termination was found wrongful by the trial court and had nothing to do with a declaration of redundancy, so the claim for severance pay could not stand.
Nature of a first appeal
As a first appeal, the Court re-evaluates the evidence and reaches its own conclusions on the facts, while according due allowance to the fact it did not see or hear the witnesses
The court invoked the classic first-appeal duty as stated in Mwanasokoni v Kenya Bus Limited: it must re-evaluate the evidence and come to its own conclusion on the facts, but remains cognizant of not having seen or heard the witnesses before the trial court.
Legal principles established
#- A party is bound by their pleadings; issues for determination arise from the pleadings and a court may not determine issues not placed before it, including additional claims raised for the first time in written submissions after close of proceedings
- Reinstatement or re-engagement under section 49 of the Employment Act depends on the existence of a prayer in the pleadings and the practicability of such an order in the circumstances
Court orders
#- 1.The appeal is dismissed with costs to the respondent
- On appeal from
- Employment and Labour Relations Court, Nairobi
- ELRC Case No. 117 of 2013
- Jurisdiction invoked
- First appeal to the Court of Appeal from the Employment and Labour Relations Court (no specific constitutional provision cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James K. Kamau v Nairobi City Council [2018] KECA 625 (KLR)", Case Analysis (2018). Civil Appeal No. 29 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/625/eng@2018-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.