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ELRCPartially AllowedELRC C E142/2021· [2022] KEELRC 1255 (KLR)

Munga v Parpia (Cause E142 of 2021) [2022] KEELRC 1255 (KLR)

Employment and Labour Relations Court
18 July 2022
3,530 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded a worker Kshs 26,250 in unpaid leave after his employer's 'Without Prejudice' letter counted as an admission, but refused urgent certification without evidence.

What this practically means

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Executive summary

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The claimant, Teddy Waweru Munga, moved the Employment and Labour Relations Court by Notice of Motion dated 8th March 2022 seeking judgment on admission for Kshs 26,250 being compensation for untaken leave days accrued between 17th June 2020 and 25th November 2020, plus certification of the suit as urgent and a priority hearing date. He relied on a letter dated 3rd December 2020, written on a Without Prejudice basis, in which the respondent acknowledged five months of service, invoked Section 28(1)(b) of the Employment Act and requested computations of the leave pay. The respondent opposed, denying any admission, contending the letter was inadmissible under the Without Prejudice rule, and asserting the claimant had proved no flight risk. The court applied Order 13 Rule 2 and the test that an admission must be plain, clear, unconditional, obvious and unambiguous. It held the letter constituted an express, unequivocal admission that leave days were owing, and that the Without Prejudice rule did not protect it since the respondent was not genuinely negotiating - he failed to respond to the computations supplied. Judgment was therefore entered for Kshs 26,250 payable within 21 days. On urgency, the court found no evidence of the project timeline, the respondent's contract details, or flight risk, holding that foreign nationality alone is insufficient; the claimant failed to discharge the burden under Sections 107, 109 and 112 of the Evidence Act. The parties were directed to seek an early hearing date at the Registry, and given partial success there were no orders as to costs. Judgment delivered virtually at Nairobi on 18th July 2022 by Dr. Jacob Gakeri, J.

Key legal issues

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01

Whether the respondent's letter of 3rd December 2020 amounted to an express, unequivocal admission of owing leave days entitling the claimant to judgment on admission

Holding

The letter was an express and unequivocal admission; the Without Prejudice label did not protect it because it did not form part of genuine settlement negotiations, the respondent having failed to respond to the computations supplied.

Reasoning

The court found the respondent admitted the claimant worked five months, laid the basis of computation under Section 28(1)(b) of the Employment Act and requested computations. The Without Prejudice rule is founded on public policy encouraging settlement and has exceptions; the respondent's silence after receiving computations showed no genuine negotiation intent. The admission was therefore express, plain and unconditional, justifying judgment on admission under Order 13 Rule 2.

p. 6
02

Whether the suit should be certified urgent and given a priority hearing date due to alleged risk of the respondent leaving the jurisdiction

Holding

Refused. The claimant adduced no evidence of the project timeline, the respondent's flight risk, or his contract/work permit details.

Reasoning

Urgency certification is discretionary and must rest on evidence and reason. Beyond the bare assertion that the respondent is a Canadian citizen, the applicant provided no material on when the project would end, whether the respondent would relocate, or his engagement terms with KENHA. Under Sections 107, 109 and 112 of the Evidence Act the applicant bore the burden of proving these allegations and failed. The respondent had also shown willingness to defend the claim.

p. 7

Legal principles established

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  • Judgment on admission under Order 13 Rule 2 may be entered where the admission, whether express or implied, is plain, clear, unconditional, obvious and unambiguous; an admission may be formal or informal.
  • The Without Prejudice rule is not absolute; one recognised exception is where a statement is not made as part of a proposal to negotiate a settlement.
  • Urgency certification is a discretionary power to be exercised on the basis of evidence and reason, not arbitrarily or capriciously.

Court orders

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  1. 1.The respondent to pay the sum of Kshs.26,250 as payment for untaken leave days within 21 days.
  2. 2.The parties to seek an early hearing date at the Registry.
  3. 3.There shall be no orders as to costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 159(2)(b) and 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure RulesOrder 13 Rule 2
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 3
  • Employment and Labour Relations Court ActSection 3
  • Evidence ActSections 9, 107(1), 109, 112
  • Employment Act (implied, 'the Act')Section 28(1)(b)
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (10)

  • Ideal Ceramics Ltd V Suraya Property Group Ltd
    (2017) eKLR
  • Benjoh Amalgamated Ltd V Kenya Commercial Bank Ltd & Another
    (2018) eKLR
  • Choitram V Nazari
    (1984) KLR 327
  • High Chem East Africa Ltd V David Njau Wambugu
    (2020) eKLR
  • Joseph Kipchirchir Koech V Philip Cheruiyot Sang
    (2018) eKLR
  • Rush & Tompkins Ltd V Greater London Council
    (1989) AC 1280
  • Cassam V Sachania
  • Momanyi V Hatimy & Another
    (2003) EA 600
  • Cutts V Head
    (1984) Ch. 290
  • Scott Paper Co V Drayton Paper Works Ltd
    (1927) 44 R.P.C 151
Jurisdiction invoked
Article 50(1) and Article 159(2) of the Constitution of Kenya, 2010; Order 13 Rule 2 of the Civil Procedure Rules, 2010; Rule 3 of the Employment and Labour Relations Court (Procedure) Rules 2016

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, "Munga v Parpia (Cause E142 of 2021) [2022] KEELRC 1255 (KLR)", Case Analysis (2022). ELRC C E142/2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1255/eng@2022-07-18

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