Julius Masiva Obuga v Kenya Broadcasting Corporation [2019] KECA 30 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a former Voice of Kenya staff member never became a KBC employee because he retired before any formal job offer was made to him.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether, upon the creation of the respondent corporation, the appellant became an employee of the respondent corporation
- 2.What the appellant's terms of service were and the circumstances under which his employment came to an end
- 3.Whether the trial court's judgment, allegedly unsigned, was a nullity
Key legal issues
#Whether the appellant automatically became an employee of the respondent corporation upon its creation
The appellant was not an employee of the respondent; he left the civil service before secondment was done and before any offer of employment was made to him under sections 16 and 17 of the Act.
Sections 16 and 17 of the Act laid down a process: seconded officers could be offered employment by the corporation, to be accepted within six months. The documentary evidence showed the appellant remained under the authority of the Permanent Secretary, was never among staff seconded to the corporation, and retired before any offer was made. He was therefore not entitled to benefit from the respondent's pension scheme, which only became operational in 1991 and to which he never contributed.
Whether the appellant was retired without his consent under the 50-year rule
The appellant expressed and pursued his intention to retire at 50, so the retirement was voluntary and the complaint baseless.
Correspondence reproduced by the trial court, including a letter dated 15th February 1989 approving his earlier request, established that the appellant sought early retirement at 50 and took deliberate steps, including seeking re-designation to secure a reasonable pension. His assertion that he had no intention of retiring at 50 was contrary to the documentation produced in court.
Whether the appellant proved promotion to job group K or L entitling him to higher pension and increments
The appellant failed to discharge the burden of proof; his claims of promotion remained unproven and the trial court rightly relied on the respondent's documents.
The appellant claimed his promotion documents were burnt in the 1992 clashes but produced an abstract that did not specify which documents were lost; he did not attempt to obtain copies from the Ministry or summon Ministry officials to corroborate his account. Under sections 107, 108 and 109 of the Evidence Act, he who asserts must prove. The documents produced by the respondent, including confirmation that he was correctly graded in job group H, controverted his version and were not challenged on veracity or admissibility.
Whether the trial court's judgment was a nullity for want of signature
Nothing turns on this ground; the original record confirmed the judgment was signed by both Nambuye J who wrote it and Gacheche J who delivered it.
The appellant contended that neither the judge who wrote the judgment nor the judge who delivered it signed it, leaving no valid judgment on record. The Court perused the original record and confirmed the handwritten judgment bore both signatures, disposing of the ground.
Legal principles established
#- A first appellate court has a duty to re-evaluate the evidence tendered before the High Court and arrive at its own conclusions.
- He who asserts must prove; the burden of proof lies on the party asserting a fact, per sections 107, 108 and 109 of the Evidence Act.
- Former employees of the Voice of Kenya became employees of the respondent corporation only if offered employment under sections 16 and 17 of the Act and the offer was accepted; secondment was not automatic.
Court orders
#- 1.Appeal dismissed
- 2.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the leading judgment dismissing the appeal, holding the appellant was never an employee of the respondent corporation and had voluntarily elected to retire under the 50-year rule.
In the result, this appeal is devoid of merit. I would dismiss the appeal and order each party to bear their own costs.p. 4
- On appeal from
- High Court of Kenya at Eldoret
- HCCC No. 35 of 1995
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Rules (delivered in accordance with Rule 32(3) of the Court of Appeal Rules); appeal against the whole judgment of the High Court
Relief refused
#Setting aside the trial court's judgment and finding in the appellant's favour
The appellant failed to prove promotion to job group K or L, was never an employee of the respondent corporation, and voluntarily elected to retire at 50 under the Public Service Commission scheme.
Claim that the trial court's unsigned judgment was a nullity
The original record confirmed the handwritten judgment was signed by both Nambuye J and Gacheche J.
Costs
Each party to bear their own costs
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.
In the result, this appeal is devoid of merit. I would dismiss the appeal and order each party to bear their own costs.
the appellant was not an employee of the respondent, at the time of his election to retire from the public service at the age of 50 years
Thus, his assertions remain unproven, and as the aphorism goes, he who asserts must prove.
the laid down process was that former employees of Voice of Kenya were to be employees of the respondent corporation if they were offered employment by the corporation and the offer of employment was accepted within six (6) months of the letter of offer
The complaint that he was retired without his consent is therefore baseless, and the appeal fails on that score.
I have perused the original record and have confirmed that the handwritten judgment was indeed signed by Nambuye J. (as she then was) who wrote the judgment and by Gacheche J. who read the judgment.
Issues in the judgment
#The coram lists three judges but the judgment states Githinji JA ceased to hold office by retirement, and the judgment was delivered by two judges under Rule 32(3); the certification does not state where/at whose instance Githinji JA's draft position stood.
The pleading is described as an amended plaint filed on 22nd March 1993 while the termination/retirement is pleaded as occurring on or about 13th October 1989 and the suit numbered HCCC No 35 of 1995 - internal date inconsistencies in the narrative.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Julius Masiva Obuga v Kenya Broadcasting Corporation [2019] KECA 30 (KLR)", Case Analysis (2019). Civil Appeal No 54 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/30/eng@2019-12-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.