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Court of AppealPartially AllowedCivil Appeal No 265 of 2019· [2021] KECA 293 (KLR)

Kartar Singh Construction Limited v Jirmo (Civil Appeal 265 of 2019) [2021] KECA 293 (KLR)

Court of Appeal
3 December 2021
1,928 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 cut an employee's award from Kshs 768,892 to Kshs 68,436 because unproven claims and unpleaded defences both fail.

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 Nairobi against a judgment of the Employment and Labour Relations Court (Ongaya, J, having taken over from Mbaru, J) which declared the termination of the respondent Godana Jilo Jirmo's employment by the appellant Kartar Singh Construction Limited on 19th June 2010 unlawful and unfair, awarded him Kshs 768,892.35, a certificate of service and costs. The respondent claimed underpayment, unpaid notice, leave, severance, overtime, weekly rest days and public holiday pay, and alleged tribal discrimination. The appellant contended the employment ended when construction works concluded. The Court of Appeal, comprising Okwengu, Makhandia and Sichale, JJA, in a single judgment of the court, reiterated its duty on a first appeal to re-evaluate the record, applying Selle v Associated Motor Boat Company. It held that the respondent's claims for overtime, leave, rest days and holiday pay were not proved, that the admitted underpayments for 2009 and 2010 totalled Kshs 38,344, and that the appellant, having served no redundancy notice when the works ended, had to pay a month's salary in lieu of notice plus three months' pay as damages. The court declined to disturb the certificate-of-service order, rejected a set-off of a Kshs 40,000 loan for want of pleading, found no merit in the discrimination claim, and refused a retrial. The appeal was partially allowed, the award of Kshs 768,892.35 set aside and judgment entered for the respondent for a total of Kshs 68,436.00; there was no order of costs. This judgment binds subordinate courts and tribunals on the matters it decides.

Key legal issues

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01

Duty of a first appellate court

Holding

The Court of Appeal must re-analyze, re-assess and re-evaluate the record and reach its own conclusions

Reasoning

Relying on Selle v Associated Motor Boat Company, an appeal from the trial court is by way of retrial; the appellate court is not bound by the trial judge's findings of fact where account was not taken of particular circumstances or probabilities, or where impressions of demeanour are inconsistent with the evidence generally.

p. 3
02

Termination and notice on closure of construction works

Holding

Employment ended by closure of the site was effectively a redundancy; absent a redundancy notice, the respondent was entitled to one month's salary in lieu of notice plus damages

Reasoning

It was not disputed that the appellant's construction works came to an end and the site no longer needed the respondent's services. Because the appellant did not serve a redundancy notice, the respondent was entitled to a month's salary in lieu of notice, his salary being paid monthly. The court also awarded damages equivalent to three months' pay.

p. 3
03

Proof of overtime, leave, rest days and public holiday claims

Holding

The respondent did not prove these claims; mere allegations denied by the appellant were insufficient

Reasoning

Apart from allegations of non-payment, which the appellant denied, the respondent led no proof of overtime, unpaid leave, weekly rest days or public holiday work. The trial court's global award of Kshs 768,892.35 was therefore unsupported and was set aside, with only the underpayments admitted by the appellant for 2009 and 2010 being awarded.

p. 4
04

Set-off of loan not pleaded

Holding

The appellant could not set off the Kshs 40,000 loan as it had not pleaded a counterclaim or set-off

Reasoning

Although the appellant testified that it loaned the respondent Kshs 40,000 and sought to offset it against sums owed, and the respondent did not controvert this, the appellant never pleaded a counterclaim or set-off. The argument was therefore not available to it on appeal.

p. 4
05

Tribal discrimination

Holding

No substance in the discrimination allegation; the respondent was silent on the issue in submissions

Reasoning

The court found no evidentiary basis for the claim that termination was on tribal grounds, noting the respondent was Borana and the appellant's director a Sikh, and observing that the relationship had lasted over five years and ended when construction works ended. The respondent also did not press the point in submissions.

p. 4

Legal principles established

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  • A first appeal is decided by re-analysing, re-assessing and re-evaluating the record and reaching independent conclusions
  • A party who did not plead a counterclaim or set-off cannot rely on set-off on appeal
  • Termination of employment on closure of a construction site without a redundancy notice entitles the employee to a month's salary in lieu of notice where salary was paid monthly

Court orders

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  1. 1.Appeal partially allowed
  2. 2.Award of Kshs 768,892.35 set aside
  3. 3.Judgment entered for the respondent for one month's salary in lieu of notice
  4. 4.Damages equivalent to 3 months' pay at Kshs 7,523.00 (Kshs 22,569.00)
  5. 5.Underpayment of Kshs 10,068.00 and Kshs 28,276.00 for the years 2009 and 2010, totaling Kshs 68,436.00
  6. 6.Trial court's order that the appellant avails a certificate of service to the respondent not disturbed
  7. 7.No order of costs

Authorities

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Legislation

  • Employment ActSection 49
  • Legal Notice No. 42 of 1st May, 2005
  • Legal Notice No. 38 of 1st May, 2006 (Regulation of Wages (General Amendment Order) 2006)
  • Legal Notice No. 70 of 1st May, 2009
  • Legal Notice No. 98 of 1st May, 2010

Cases cited (1)

  • Selle Vs. Associated Motor Boat Company
    [1968] E.A. 123
On appeal from
Employment and Labour Relations Court
Not stated in the judgment
Jurisdiction invoked
First appeal to the Court of Appeal (re-evaluation of the trial record)

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, "Kartar Singh Construction Limited v Jirmo (Civil Appeal 265 of 2019) [2021] KECA 293 (KLR)", Case Analysis (2021). Civil Appeal No 265 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/293/eng@2021-12-03

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