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ELRCStruck OutAppeal No 21 of 2018· [2021] KEELRC 112 (KLR)

Sanganyi Tea Factory Ltd v Samwel Bundi Ondieki [2021] KEELRC 112 (KLR)

Employment and Labour Relations Court
9 December 2021
535 words in judgment
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The bottom line

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A 13-year-old appeal was struck out because the employer's lawyer filed an incomplete court record, killing the challenge to a damages award.

What this practically means

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Executive summary

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Sanganyi Tea Factory Ltd appealed against a trial magistrate's decision finding it 80% liable for an accident and awarding general damages. The memorandum of appeal was lodged in the High Court at Kisii on 8 August 2008, raising four grounds: that liability was not proved, that the finding of 80% liability was erroneous, that damages were manifestly excessive, and that the magistrate failed to consider the evidence and submissions. The appellant filed submissions on 13 October 2011 and the respondent on 14 July 2016. On 19 June 2018 the High Court, citing lack of jurisdiction, transferred the appeal to the Employment and Labour Relations Court. After inactivity, a Notice to Show Cause was issued on 7 June 2021, and on 28 June 2021 the court was informed submissions had been filed and exchanged. The court restated the role of a first appellate court, citing Kamau v Mungai (2006) 1 KLR 150, namely to re-evaluate the evidence and reach its own conclusions. It then found the record of appeal incomplete - page 2 of the respondent's testimony and page 2 of the typed judgment were missing - which prevented it from performing its appellate role. The court criticised the appellant's advocate for lack of diligence, noted the appeal had earlier been dismissed on 6 July 2015 and reinstated on condition it be listed within 30 days of 14 December 2016, and concluded that justice could not be administered. The appeal was struck out with no order on costs. Judgment was delivered virtually and dated at Kisumu on 9 December 2021.

Key legal issues

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01

Role of a first appellate court

Holding

The first appellate court must re-evaluate the evidence and reach its own conclusions, allowing for the fact it did not hear the witnesses

Reasoning

The court adopted the holding in Kamau v Mungai (2006) 1 KLR 150 that a first appellate court must re-evaluate the evidence and reach its own conclusions while making due allowance for not having seen or heard the witnesses. The court stated it would keep this interdict in mind in considering the appeal.

p. 2
02

Consequences of an incomplete record of appeal

Holding

An incomplete record prevents the court from carrying out its first appellate role, and the appeal was struck out with no order on costs

Reasoning

The record lacked page 2 of the respondent's testimony and page 2 of the typed judgment. The court found the incomplete record demonstrated lack of diligence by the appellant's advocate and lack of interest in the ends of justice. Coupled with the long pendency of the appeal and prior dismissal and conditional reinstatement, the court concluded justice could not be administered and struck out the appeal.

p. 2

Legal principles established

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  • A first appellate court must re-evaluate the evidence, assess it and reach its own conclusions, making due allowance for not having seen or heard the witnesses
  • An incomplete record of appeal prevents a first appellate court from discharging its function and may justify striking out the appeal

Court orders

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  1. 1.The Appeal is struck out with no order on costs

Authorities

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Cases cited (1)

  • Kamau v Mungai
    (2006) 1 KLR 150
On appeal from
High Court at Kisii (originally) / trial Magistrate's Court
Not stated
Jurisdiction invoked
Transfer by the High Court on 19 June 2018 citing lack of jurisdiction; appeal transferred to 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, "Sanganyi Tea Factory Ltd v Samwel Bundi Ondieki [2021] KEELRC 112 (KLR)", Case Analysis (2021). Appeal No 21 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/112/eng@2021-12-09

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