Brade Gate Holdings Limited v Mwangi (Civil Appeal 92 of 2019) [2024] KECA 1011 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that an employer who sacks a worker verbally, without notice or reason, and skips calling key witnesses will lose.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent's employment was verbally terminated without notice or valid reason, or whether he absconded from duty
The trial court correctly found, on the evidence, that the Chairman verbally, unfairly and illegally terminated the respondent's employment on 18th October 2015 without reason or notice; the appellant's claim that the respondent absconded was rejected
The respondent testified that the Chairman convened a staff meeting at which he declared the respondent no longer Group General Manager, ordered him to hand over, pack and leave, and refused to give reasons. The appellant's witness admitted the meeting and the handing over of car keys. The appellant did not call the Chairman to rebut this evidence. The trial court accepted the respondent's version and the Court found those findings justified under sections 41 and 43 of the Employment Act.
Adverse inference from non-calling of the Chairman as a witness
Since the pleadings made the Chairman's conduct an issue and the respondent testified about it, the trial Judge was entitled to draw the inference that had the Chairman testified he would have given evidence adverse to the appellant's case
The respondent pleaded that the Chairman verbally terminated his employment; the appellant denied it. The respondent testified on the events of 18th October 2015. The appellant, which had the Chairman available, neither called him nor explained the failure to do so. Relying on Stanley Mombo Amuti v Kenya Anti-Corruption Commission, the Court held the trial Judge was entitled to take an adverse view of that failure.
Whether the awards made by the trial court could be challenged on appeal
The memorandum of appeal raised no issue regarding the awards; the appellant could not challenge them through written submissions outside the grounds of appeal
The four grounds of appeal attacked the findings of verbal dismissal, not the quantum or the orders under sections 49(1)(c), 35(1)(c) and 51 of the Employment Act. Learned counsel for the appellant sought to challenge the award only in written submissions, but an appeal is confined to its stated grounds, so the challenge was impermissible.
Legal principles established
#- A first appellate court must re-consider and re-evaluate the evidence adduced before the trial court and satisfy itself that the conclusions reached were consistent with the evidence
- Where a party does not call a witness who could rebut evidence given against that party, and offers no explanation for the failure, the court is entitled to draw an adverse inference that the witness's evidence would have been unfavourable to that party
- An appellant cannot expand an appeal beyond the grounds in the memorandum of appeal; issues not raised in those grounds cannot be argued through written submissions
Court orders
#- 1.The appeal is dismissed
- 2.The appellant to pay costs of the appeal
- On appeal from
- Employment and Labour Relations Court of Kenya at Nyeri
- Not stated in the judgment
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal over the ELRC (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Guni v African Marine & General Engineering & Co Ltd (Appeal E064 of 2025) [2025] KEELRC 2678 (KLR)[2025] KEELRC 2678 (KLR)2 Oct 2025applied
- Corrugated Sheets Limited v Ngao (Appeal E031 of 2025) [2025] KEELRC 2322 (KLR)[2025] KEELRC 2322 (KLR)31 Jul 2025followed
Cite this brief
#Cite this brief
Caselaw, "Brade Gate Holdings Limited v Mwangi (Civil Appeal 92 of 2019) [2024] KECA 1011 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1011/eng@2024-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.