Harrison M. Kariuki & 14 others v Kenya Farmers Association [2020] KECA 607 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that even when an employer offers no defence, employees must still prove every shilling of their claims with specific evidence.
What this practically means
#Executive summary
#Key legal issues
#Duty to specifically prove special damage claims
The appellants' monetary claims were special damages requiring particularisation and specific proof; the fact that the respondent called no evidence did not discharge this burden.
Section 107 of the Evidence Act places the burden of proving facts asserted on the person who desires judgment. The claims in the schedule attached to the plaint were special damages. Counsel's submission that an unchallenged case must succeed was rejected: the burden remains on the claimant regardless of the absence of rebuttal evidence. The unawarded claims lacked particulars and were unsupported by the evidence reviewed.
First appellate court's duty
Rule 29 of the Court of Appeal Rules obliged the Court to re-appraise the evidence and draw its own conclusions.
The Court restated the classic first-appeal standard: reconsider the evidence, evaluate it itself and draw its own conclusions, while making due allowance for not having seen or heard the witnesses, and ruling only on the evidence on record without introducing extraneous matters.
SACCO disputes and jurisdiction
Claims regarding deductions remitted to a cooperative society fall under the Cooperative Societies Act dispute resolution mechanism and are not justiciable before the ordinary courts.
The Court accepted the respondent's submission, invoking the Cooperative Societies Act, that disputes between a SACCO and its members must go through the statutory dispute resolution mechanism, and held the trial Judge was right to decline to delve into that issue.
Raising unpleaded claims on appeal
A claim (gratuity) not pleaded in the plaint and not addressed at trial cannot be raised for the first time on appeal.
The gratuity claim did not appear in the amended plaint and was not addressed by the Judge or parties in the High Court. New issues may not be introduced on appeal. In any event, gratuity is discretionary and gratuitous, so nothing turned on the point.
General damages for breach of employment contract
General damages are not awardable where the contract of employment itself provides for a notice period and payment in lieu.
Relying on Alfred J. Githinji v Mumias Sugar Company Limited, the Court held that where the contract specifically provides for a notice period and what happens if a party cannot comply, the employee wrongfully dismissed who has received what the contract entitles him to cannot claim general damages.
Testimony on behalf of co-plaintiffs under Order 1 rule 12
Where each plaintiff claims different sums under different heads, it is improper for one witness to testify on behalf of others, as each claim cannot be specifically proved.
The Court expressed surprise that one witness was recalled to testify for other plaintiffs under Order 1 rule 12 given that each plaintiff claimed different sums; it would have been proper for each plaintiff, e.g. Janet, to testify and give specifics, particularly where documents suggested payment had been received.
Legal principles established
#- On a first appeal, the Court of Appeal must reconsider and evaluate the evidence and draw its own conclusions, while making allowance for not having seen or heard the witnesses.
- The fact that a defendant calls no evidence does not remove or reduce the plaintiff's burden to plead and specifically prove a claim for special damages.
- Special damages must be pleaded with proper particulars and then specifically proved.
- Gratuity is a gratuitous payment made at the discretion of the employer.
- General damages are not recoverable for breach of a contract of employment that provides for a notice period and payment in lieu.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal are awarded to the respondent
- On appeal from
- High Court of Kenya at Nakuru
- H.C.C.C. No. 128 of 2001
- Jurisdiction invoked
- First appeal to the Court of Appeal under Rule 29 of the Court of Appeal Rules (appellate re-appraisal of evidence)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Harrison M. Kariuki & 14 others v Kenya Farmers Association [2020] KECA 607 (KLR)", Case Analysis (2020). Civil Appeal No. 14 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/607/eng@2020-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.