Njuguna & 4 others v Marsh View Ltd (Civil Appeal 7, 8, 9, 10 & 11 of 2019 (Consolidated)) [2023] KECA 1650 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that accepting payment of a court award does not stop you from appealing, but employees must still prove every claim they make.
What this practically means
#Executive summary
#Key legal issues
#Right of appeal where the decree has been executed
Execution or satisfaction of a decree does not extinguish the right to appeal; the appellants cannot be denied a hearing merely because they received the decreed award.
The respondent's preliminary objection was that by executing the decree the appellants had accepted the ELRC decision and could not challenge it. The court, relying on its prior decisions in Machakos District Co-Operative Union and Seventh Day Adventist Church East Africa, held that payment of a decretal sum does not take away a party's right of appeal, since the right of appeal is a strong right rivalled only by the right to enjoy the fruits of judgment.
Claims for house allowance, leave allowance, overtime and underpayment
The trial court properly found that the appellants failed to prove these claims; the cited Legal Notice prescribed a minimum wage below what they were actually paid.
The bank statements showed fluctuating amounts, and the claims were made without any basis laid. The burden lay on the appellants to prove their case to the required standard. On underpayment, Legal Notice No. 116 of 2015 prescribed Kshs. 6,278.80 for a watchman, which is less than the Kshs. 7,500 earned, so underpayment was not demonstrated. The court noted Legal Notice No. 117 of 2015 was not cited before the trial court and left the issue there.
Adequacy of compensatory damages for unfair termination
The award of two months' salary as compensation was not so inadequate as to justify appellate interference; the discretion under section 49 of the Employment Act was judiciously exercised.
Remedies for unfair termination under section 49 are discretionary and depend on factors in section 49(4), including length of service and the employee's contribution to termination. The appellants' service was mostly less than a year, and termination was based on theft allegations, albeit with a flawed procedure. Applying the Darasa Investments standard, the court found no misdirection by the trial Judge.
Legal principles established
#- Satisfaction or enforcement of a decree does not bar a dissatisfied party from filing an appeal against that decree
- On a first appeal, the appellate court must reconsider and evaluate the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses
- A claimant bears the burden of proving a claim for overtime, house allowance and leave allowance even where the employer adduces no documentary evidence to the contrary
- An appellate court will not interfere with a discretionary award of compensatory damages for unfair termination absent misdirection or clear error occasioning injustice
Court orders
#- 1.The consolidated appeals are dismissed, save for the 5th appellant's appeal which succeeds only to the extent of his claim for unpaid salary for twenty days worked in August 2016
- 2.The respondent is ordered to pay the 5th appellant, Mwangangi Mutua, his salary for 20 days worked in the month of August 2016
- 3.Each party shall bear their own costs in this appeal
- On appeal from
- Employment and Labour Relations Court at Nyeri
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal from the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njuguna & 4 others v Marsh View Ltd (Civil Appeal 7, 8, 9, 10 & 11 of 2019 (Consolidated)) [2023] KECA 1650 (KLR)", Case Analysis (2023). Not stated in the judgment (five consolidated appeals). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1650/eng@2023-07-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.