Kedar Builders Limited v Sammy (Appeal E043 of 2021) [2022] KEELRC 4150 (KLR)
The bottom line
#A Kenyan employment appeal succeeded because the trial judge overlooked the employer's written submissions, so the case goes back for a fresh judgment—no retrial needed.
What this practically means
#Executive summary
#Key legal issues
#Whether omission of a party's closing submissions vitiates the trial court's judgment
Ground 2 of the appeal was well-founded: the trial court stated the appellant's submissions had not been filed, yet the record showed they were filed and confirmed on February 23, 2021. The omission cast doubt on the legal findings and warranted intervention.
The record showed both parties confirmed filing and exchanging submissions on February 23, 2021, and the respondent's submissions were date-stamped February 22, 2021, so the trial court must have been seized of the appellant's submissions. The trial court nonetheless stated the appellant's submissions were not considered. This omission placed the legal findings on reasons and fairness of procedure in doubt, since submissions contain case law and a party's interpretation of the applicable law. The judgment could be revisited without a fresh trial, as pleadings and evidence had been considered.
What remedy follows where closing submissions were omitted but pleadings and evidence were considered
The appropriate remedy is for the trial court to revisit its judgment and take the submissions into account, delivering a fresh judgment; there is no need for a fresh hearing or dismissal of the claim.
The omission did not relate to pleadings or evidence, so a fresh trial was unnecessary. Dismissing the claim would be a travesty. The court could not say the outcome would have been the same without the omission; it was for the trial court to assess the pleadings and evidence against the closing submissions filed by both parties. The appeal was allowed on ground 2, which affected grounds 3 and 4.
Legal principles established
#- Closing submissions are integral to the concept of fair hearing, and failure to consider submissions shown to be on record adversely affects the court's responsibility to administer justice fairly.
- Where only the closing submissions were omitted, the judgment can be revisited without subjecting the parties to another full trial.
Court orders
#- 1.The appeal is allowed on ground 2
- 2.The trial court shall consider the submissions filed by the appellant, and deliver a fresh judgment to the parties, on a date to be notified to the parties
- 3.There shall be no fresh hearing before the trial court
- 4.No order as to costs on appeal
- 5.Costs on trial to be determined by the trial court
- On appeal from
- Trial court (not specified by name in the judgment)
- Jurisdiction invoked
- Appellate jurisdiction over an appeal from the trial court (memorandum of appeal on 4 grounds); specific provision not stated
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kedar Builders Limited v Sammy (Appeal E043 of 2021) [2022] KEELRC 4150 (KLR)", Case Analysis (2022). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4150/eng@2022-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.