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Court of AppealPartially AllowedNot stated in the judgment (five consolidated appeals)· [2023] KECA 1650 (KLR)

Njuguna & 4 others v Marsh View Ltd (Civil Appeal 7, 8, 9, 10 & 11 of 2019 (Consolidated)) [2023] KECA 1650 (KLR)

Court of Appeal of Kenya
21 July 2023
3,395 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Five consolidated first appeals from the Employment and Labour Relations Court at Nyeri (Nzioka wa Makau, J, 29th May 2018) by former night guards employed by the respondent at its Juja premises, who were summarily dismissed on 20th August 2016 amid allegations of theft and negligence. The trial court found the dismissal unfair, failed to uphold the statutory safeguards under section 41 of the Employment Act, but only awarded each appellant one month's salary in lieu of notice and two months' salary as compensation, and disallowed claims for underpayment, house allowance, leave allowance and overtime. The respondent's preliminary objection that execution of the trial decree barred the appeal was rejected: the court held that satisfaction or enforcement of a decree does not bar a dissatisfied party from appealing. On the merits, the Court of Appeal affirmed the trial court's dismissal of the overtime, house allowance and leave claims, holding that the appellants bore the burden of proving them even absent contrary evidence from the employer. On underpayment, the court found the cited Legal Notice No. 116 of 2015 prescribed Kshs. 6,278.80, below the Kshs. 7,500 actually paid, so no underpayment was proved. The two months' compensation was upheld as a judicious exercise of discretion under section 49, given the short service and the theft allegations underlying the termination. The sole success was the 5th appellant, Mwangangi Mutua, awarded salary for twenty days worked in August 2016, his name not appearing in the respondent's certificate of payment. The appeals were otherwise dismissed, with each party bearing their own costs.

Key legal issues

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01

Right of appeal where the decree has been executed

Holding

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.

Reasoning

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.

p. 4
02

Claims for house allowance, leave allowance, overtime and underpayment

Holding

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.

Reasoning

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.

03

Adequacy of compensatory damages for unfair termination

Holding

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.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 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. 3.Each party shall bear their own costs in this appeal

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 10(7)
  • Employment Actsection 45(2)(c)
  • Employment Act, 2007section 49
  • Employment Act, 2007section 49(1)(c)
  • Employment Actsection 49(4)
  • Employment Actsection 50
  • Civil Procedure RulesOrder 42 rule 2
  • Regulation of Wages (Agricultural Industry) (Amendment) Order, 2015Legal Notice No. 116 of 2015
  • Legal Notice No. 117 of 2015Not specified

Cases cited (7)

  • Kartar Singh Construction Limited vs Jirmo
    (Civil Appeal No. 265 of 2019) [2021] KLR
  • John Enemai Bibilondo vs Lydia Wangare Kariuki Munene
    [2019] eKLR
  • Peter Ngunjiri vs Board of Management Magomano Secondary School
    [2022] eKLR
  • Gitobu Imanyara & 2 others v Attorney General
    [2016] eKLR
  • Machakos District Co-Operative Union Limited vs Philip Nzuki Kiilu
    [1997] eKLR
  • Seventh Day Adventist Church East Africa Ltd. & 2 Others vs Masosa Construction Company
    [2006] eKLR
  • Kenya Revenue Authority & 2 others v Darasa Investments Limited
    [2018] eKLR
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.