Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedAppeal No 80 of 2021· [2022] KEELRC 1373 (KLR)

Njoroge v Tea Board of Kenya (Appeal 80 of 2021) [2022] KEELRC 1373 (KLR)

Employment and Labour Relations Court
4 July 2022
MOMaureen Onyango
1,996 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A former board member lost his claim for Kshs.288,000 in sitting allowances because Kenyan courts will not pay allowances for meetings never attended.

What this practically means

#

Executive summary

#
This first-instance appellate judgment by Maureen Onyango J, delivered in Nairobi on 4th July 2022, determined an appeal and cross appeal arising from the judgment of Hon. C. Obulutsa, Chief Magistrate, in Milimani Civil Case No. 4510 of 2008 delivered on 30th September 2013. The Appellant, a former board member of the Respondent, had claimed special damages of Kshs.434,596/- comprising sitting allowances of Kshs.837,214/- pleaded for board meetings he did not attend between 23rd April 2004 and 24th July 2006, contending his exclusion was occasioned by the Respondent. The Trial Court dismissed the claim for special damages but awarded the Appellant costs, prompting the Respondent's cross appeal on costs. Guided by Selle v Assorted Motor Boat Company, the court re-evaluated the evidence and held that the Appellant attended no board meetings in the claim period; sitting allowances are payable only upon attendance, the allowances were anticipatory damages requiring specific pleading and proof, and awarding them would amount to unjust enrichment. On the cross appeal, the court found the Trial Court's statement that the suit had partly succeeded was unsupported by the judgment, which dismissed the claim entirely, and that the costs award was therefore made in error. The main appeal was dismissed with costs to the Respondent, and the cross appeal succeeded: the Trial Court's costs order was set aside and substituted with an order that the lower court suit be dismissed with costs. The Appellant conceded before this Court the heads for lunch, travel and accommodation for the Nairobi Show in 2004 and 2005.

Key legal issues

#
01

Whether allowances for board meetings not attended are recoverable as special damages

Holding

The claim fails; allowances are anticipatory and dependent on attendance, and the Appellant attended no meetings during the claim period.

Reasoning

The Appellant was excluded from board meetings between 23rd April 2004 and 24th July 2006 and attended none. Having pleaded the allowances as special damages, he was obliged to specifically plead and prove them. The court held the allowances were anticipatory, payable only on attendance, and that allowing the claim would amount to unjust enrichment, adopting the reasoning of the Trial Magistrate on this issue.

p. 4
02

Whether costs could be awarded to a litigant whose suit was dismissed in its entirety

Holding

No; the Trial Court's award of costs to the Appellant was erroneous and was set aside on the cross appeal.

Reasoning

The Trial Court had held that 'since the suit succeeds partly' the plaintiff should have costs, yet the judgment dismissed the claim for special damages in its entirety. The appellate court could not locate any portion in which the suit succeeded partly, found the costs award was made in error, and substituted an order that the suit be dismissed with costs.

p. 5

Legal principles established

#
  • A first appellate court must re-evaluate the entire evidence and draw its own conclusions, while making allowance for not having seen or heard the witnesses
  • Special damages must be specifically pleaded and proved
  • Sitting allowances are payable only for meetings actually attended; allowances for unattended meetings are anticipatory damages not recoverable, and awarding them would be unjust enrichment

Court orders

#
  1. 1.The appeal is dismissed with costs to the Respondent
  2. 2.The cross appeal succeeds; the order of the Trial Court for payment of costs is set aside and replaced with an order that the suit in the lower court is dismissed with costs

Authorities

#

Legislation

  • Civil Procedure ActSection 27(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B

Cases cited (6)

  • Capital Fish Kenya Limited v The Kenya Power & Lighting Company Limited
    (2016) eKLR
  • David Bagine v Martin Bundi
    (1997) eKLR
  • Super Marine Handling Services Limited v Kenya Revenue Authority
    [2010] eKLR
  • Selle v Assorted Motor Boat Company
    1968 EA 123-126
  • Elizabeth Wakanyi Kibe v Telkom Kenya Limited
    [2014] eKLR
  • D.K. Njagi Marete v Teachers Service Commission
    [2013] eKLR
On appeal from
Chief Magistrate's Court at Milimani Commercial Court
Civil Case No. 4510 of 2008
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Court (the judgment does not cite the specific statutory provision)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Njoroge v Tea Board of Kenya (Appeal 80 of 2021) [2022] KEELRC 1373 (KLR)", Case Analysis (2022). Appeal No 80 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1373/eng@2022-07-04

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