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ELRCDismissedNot stated in judgment· [2022] KEELRC 4143 (KLR)

Nyangasi v Sally Mahihu t/a Bowyer Mahihu & Company Advocates (Cause E499 of 2020) [2022] KEELRC 4143 (KLR)

Employment and Labour Relations Court
29 September 2022
MMM. Mbaru
1,011 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, a former employee earning Ksh 60,000 per month, brought a notice of motion dated June 7, 2022 seeking partial judgment on admission against the respondent for Ksh 270,000 with interest from September 8, 2020, being unpaid salaries for April to July and part of August 2020, with the balance of the claim to proceed to hearing. The claimant relied on paragraph 21(a) of the respondent's reply admitting failure to pay those salaries. The respondent, through the replying affidavit of Sally Mahihu, opposed the application, contending the alleged admission was not unequivocal: the non-payment occurred in the context of a serious financial crisis, employees were advised of unpaid leave and possible redundancy, and a counterclaim had been filed. The court framed a single issue: whether partial judgment should issue for Ksh 270,000. Applying Rule 13(2)(c) of the ELRC (Procedure) Rules, 2016 and the principle in Cassam v Sachania that judgment on admissions is discretionary and must be exercised sparingly only in plain cases with clear and unequivocal admissions, the court held that a plain reading of the pleadings disclosed no admission of the sum claimed. Non-payment was contextualised by the financial crisis, a matter regulated under Section 40 of the Employment Act, 2007, and whether notice and the reasons given were justified raised questions of law requiring a full hearing. The application was dismissed, the claim to proceed on the merits, with costs in the cause.

Key legal issues

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01

Whether an admission within Rule 13(2)(c) of the ELRC (Procedure) Rules, 2016 exists to justify partial judgment

Holding

No plain and obvious admission of Ksh 270,000 discernible from the pleadings; the alleged admission is equivocal given the respondent's averments on financial crisis and redundancy

Reasoning

Rule 13(2)(c) permits a respondent to admit part of a claim, entitling a claimant to seek judgment on admissions, but any admission must be plain and obvious on a plain reading. Here the respondent's response puts non-payment in the context of a financial crisis and contemplated redundancy under Section 40 of the Employment Act, raising questions of law on notice and justification that must be interrogated at a full hearing. Partial judgment would therefore not achieve the ends of justice.

p. 3

Legal principles established

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  • Judgment on admission is discretionary and must be granted sparingly only where the admission is clear and unequivocal; it cannot issue where points of law require interpretation of documents

Court orders

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  1. 1.Application dated June 7, 2022 dismissed
  2. 2.Claim to be heard on the merits
  3. 3.Costs in the cause
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, 2016, Rule 13(2)(c)

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, "Nyangasi v Sally Mahihu t/a Bowyer Mahihu & Company Advocates (Cause E499 of 2020) [2022] KEELRC 4143 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4143/eng@2022-09-29

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