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Court of AppealDismissedCivil Appeal 129 of 2019· [2022] KECA 577 (KLR)

Ngunda v Ready Consultancy Limited

Court of Appeal
4 February 2022
AMA.K. MurgorPNP. NyamweyaJLJ. Lesiit
2,944 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that employees claiming overtime or holiday pay must prove it with specifics, and skipping your own disciplinary hearing can doom an unfair dismissal claim.

What this practically means

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Executive summary

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The Court of Appeal (Murgor, Nyamweya and Lesiit, JJA) dismissed this first appeal against the Employment and Labour Relations Court at Mombasa (Rika, J.), which had declared the appellant's summary dismissal substantively unfair but awarded only 6½ months' compensation and declined claims for public holidays, Sundays and overtime. On the first issue, the Court held that the appellant, who pleaded 33 public holidays, 152 Sundays and 5,184 overtime hours, adduced no evidentiary proof or particulars of the days worked, and as a General Manager responsible for scheduling shifts was well placed to furnish particulars; the burden therefore could not shift to the respondent, and the adverse-inference argument founded on Kenya Akiba Micro Financing failed. On procedural fairness, the Court agreed with the trial judge that two show-cause letters, an invitation to a disciplinary hearing, and granted time to respond met the minimum standards of fairness under sections 41 and 45 of the Employment Act; the appellant squandered the opportunity by not returning to the hearing. On compensation, the Court held that the respondent, having filed no cross-appeal, could not query the 6½ months award, and that the trial judge gave adequate reasons for exercising his discretion; 12 months' compensation is not automatic under section 49(1)(c). The appeal was dismissed with costs to the respondent. The judgment binds subordinate courts and the ELRC on burden of proof in employment claims and the effect of failing to file a cross-appeal.

Key legal issues

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01

Burden of proof for public holidays, Sundays and overtime claims

Holding

Claims dismissed; appellant, as a General Manager part of management, provided no proof or particulars, so burden did not shift to the respondent

Reasoning

The court found no evidentiary proof that the appellant worked on public holidays or Sundays, and no breakdown of the alleged 5184 overtime hours, which it found neither feasible nor humanly possible as continuous work. The appellant, being management and responsible for scheduling shifts, was well placed to furnish particulars. Since he proved nothing, the burden could not shift to the respondent, and the adverse-inference argument failed.

p. 4
02

Procedural fairness of termination

Holding

Termination was procedurally fair; the appellant was given two show-cause letters and a disciplinary hearing opportunity which he squandered

Reasoning

The appellant was issued two show-cause letters, invited to a disciplinary hearing, attended and asked for more time, which was granted, but never returned. The court agreed with the trial judge that the procedure met the minimum standards of fairness under sections 41 and 45 of the Employment Act, and that the appellant had no one but himself to blame for squandering the opportunity to be heard.

p. 5
03

Entitlement to 12 months' compensation for unfair termination

Holding

6½ months' compensation award upheld; 12 months is not automatic and the trial judge gave reasons; respondent could not complain absent a cross-appeal

Reasoning

The court observed that the respondent filed no cross-appeal and therefore could not query the award. The trial judge had given reasons: three years of dutiful service, expectation to serve until retirement, procedural fairness but denial of substantive justice. The Court found the reasons sufficient and the appellant's complaint of being denied substantive justice unfounded.

p. 6

Legal principles established

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  • A party who alleges must prove; the burden of proof does not shift to the opposing party where the claimant has adduced no proof of the facts alleged
  • A party who did not file a cross-appeal cannot query an award made by the trial court
  • On a first appeal, the appellate court reviews the evidence with caution and will interfere where conclusions are unsupported or the trial judge plainly went wrong

Court orders

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  1. 1.Appeal dismissed with costs to the respondent

Authorities

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Legislation

  • Employment Actsection 49(1)(c)
  • Employment Actsections 41 and 45

Cases cited (7)

  • Kenya Akiba Micro Financing Limited v Ezekiel Chebii & 14 other
    [2012] eKLR

    Adverse inference where a party with custody or control of evidence fails or refuses to produce it

  • Pinnacle Tours and Travel Limited & 3 others v Pauline Ngigi t/a Safari Market Tours
    [2019] eKLR

    He who alleges must prove; burden does not shift where claimant fails to discharge it

  • Muriungi Kanoru Jeremiah vs Stephen Ungu M'Mwarabua
    [2015] eKLR

    Claimant bears burden of proving sums owed; failure means burden does not shift

  • CMC Aviation Limited v Mohammed Noor
    [2015] eKLR

    A court should specify reasons when awarding compensation

  • Peters v Sunday Post Limited
    [1958] EA 424

    Duty of a first appellate court to review evidence with caution

  • Watt v Thomas
    [1947] 1 All E.R. 582; [1947] A.C. 984

    Applied within Peters v Sunday Post on appellate review of trial findings

  • Selle v Associated Motor Boat Company Ltd.
    [1968] EA 123

    See also - first appellate court mandate

On appeal from
Employment and Labour Relations Court, Mombasa
ELRC No. 906 of 2016
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Employment and Labour Relations Court appeals)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (19)

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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, "Ngunda v Ready Consultancy Limited", Case Analysis (2022). Civil Appeal 129 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/577/eng@2022-02-04

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