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Court of AppealDismissedNot stated in judgment

Charles v Cheto

Court of Appeal
9 May 2025
SKS. Gatembu KairuKLDr. K. I. LaibutaGNG. W. Ngenye-Macharia
7,664 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 dismissed an employer's challenge to a work injury award, holding that complaints about not being notified must be raised through judicial review, not for the first time on appeal.

What this practically means

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Executive summary

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The respondent sued in the Employment and Labour Relations Court at Malindi to enforce an award of Kshs. 624,000 made by the Director of Occupational Safety and Health Services under the Work Injury Benefits Act for injuries he sustained on 7th February 2019 while pruning trees at the appellant's residence. The learned Judge (B. O. M. Manani, J.) found the respondent was a casual employee of the appellant, held that the ELRC had jurisdiction to adopt the Director's award given the statutory lacuna on enforcement, and directed that a party who learned of the Director's proceedings late could only challenge the award by judicial review before adoption. He adopted the award, with interest and costs. On appeal, the Court of Appeal framed two issues: whether the appellant's lack of notice of, or participation in, the Director's proceedings violated his right to a fair hearing; and whether the Judge erred in adopting the award. The Court held that the fair-hearing complaint was raised for the first time in oral testimony and again on appeal, was neither pleaded nor canvassed at trial, and could not be entertained. It endorsed the Judge's identification of judicial review, filed before adoption and on staying the adoption proceedings, as the only viable remedy for a party who learns of the Director's award after the objection and appeal periods lapse; the appellant, who received a copy of the award in January 2021, took no such step. The appeal was dismissed, the judgment of the ELRC was upheld, and costs of the appeal were awarded to the respondent.

Key legal issues

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01

Whether a party may raise, for the first time on appeal, the claim that he was not notified of, or party to, the proceedings before the Director and was thereby denied a fair hearing

Holding

No. The issue was not pleaded in the defence, was raised for the first time in oral testimony and again on appeal, and was not fully canvassed at trial; the court cannot entertain it.

Reasoning

The appellant's Statement of Defence primarily denied employment and alleged contributory negligence. The lack of notice and fair hearing claims first surfaced in oral testimony and were not canvassed by both parties at trial. Under established principles, a court may only determine an unpleaded issue if it was fully canvassed and left to the court. Raising a new point on appeal is grossly prejudicial and the discretion must be exercised sparingly where the evidence is complete and no factual disputes arise.

p. 8
02

Whether the ELRC erred in adopting and enforcing the Director's award under WIBA

Holding

No. There is a lacuna in WIBA on enforcement, but the ELRC has inherent jurisdiction to adopt the Director's award for enforcement; a party aggrieved after lapse of the objection and appeal periods must seek judicial review before adoption, which the appellant failed to do.

Reasoning

Sections 51 and 52 of WIBA provide for objection and appeal but are silent on redress for a party who learns of the proceedings late. The learned Judge correctly identified judicial review to quash the award, prior to adoption and on staying the adoption proceedings, as the only viable remedy. The appellant sat back despite receiving a copy of the award by email in January 2021, and the adoption suit had been pending since March 2021. The adoption stood to succeed absent any objection.

p. 14
03

The mandate of the Court of Appeal on a first appeal

Holding

The Court on a first appeal re-evaluates the evidence and draws its own conclusions, but with caution, having neither seen nor heard the witnesses.

Reasoning

Citing Ng'ati Farmers and Kenya Ports Authority v Kuston, the Court restated that on a first appeal it must reconsider the evidence, evaluate it itself and draw its own conclusions, making due allowance for the trial judge's advantage of seeing and hearing witnesses. Peters v Sunday Post cautions that it is a strong thing for an appellate court to differ from findings of fact of the trial judge.

p. 4

Legal principles established

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  • A party who was not made aware of proceedings before the Director under WIBA and who only learns of them at the adoption stage, after the time for objection and appeal has lapsed, must seek judicial review to quash the award before adoption by the court; such grounds cannot be raised for the first time on appeal or litigated afresh in adoption proceedings.
  • A new issue not pleaded or canvassed at trial may not be raised for the first time on appeal unless the discretion is exercised sparingly in accordance with established principles.
  • The ELRC has jurisdiction to enforce and adopt the Director's awards under WIBA, being the court with jurisdiction over employment and labour relations claims.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The judgment and decree of the ELRC (B. O. M. Manani, J.) delivered on 7th March 2022 is upheld
  3. 3.The costs of the appeal shall be borne by the appellant
On appeal from
Employment and Labour Relations Court at Malindi
Not stated in judgment
Jurisdiction invoked
First appellate jurisdiction of the Court of Appeal over a decision of 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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Later judgments citing this (15)

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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, "Charles v Cheto", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/784/eng@2025-05-09

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