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ELRCDismissedAppeal No E014 of 2022· [2023] KEELRC 2123 (KLR)

Hoka v Board of Management Manyonyi Girls Secondary School & another (Appeal E014 of 2022) [2023] KEELRC 2123 (KLR)

Employment and Labour Relations Court
21 September 2023
2,340 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 dismissed a former employee's appeal, ruling she failed to prove unfair termination or a sexual harassment claim she raised only after dismissal.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Kisumu against a judgment of the Trial Court dated June 9, 2022, which dismissed most of the Appellant's employment reliefs, awarding only leave allowance, on the footing that she had failed to prove her case on a balance of probability. The Appellant, formerly employed by the Respondents and terminated by letter dated November 10, 2020 on grounds of failure to perform duties, unprofessional conduct and incompetence, raised ten grounds of appeal, principally that the Trial Court relied on the Respondents' documents that were never produced or adopted in evidence, and that it failed to determine her pleaded claim of sexual harassment. The court, relying on Abok James Odera v John Patrick Machira and United India Insurance v East African Underwriters, restated the role of a first appellate court. It found that the Trial Court erred in considering the Respondents' unproduced documents, since witness statements not adopted and documents not produced as exhibits form no part of the evidential record. However, on the merits, the court held that the Appellant failed to discharge her burden under section 47(5) of the Employment Act of proving unfair termination, the burden never shifting to the Respondents. Although the Trial Court's failure to determine the sexual harassment claim occasioned a miscarriage of justice, the court found the allegation an afterthought, the acts allegedly occurring in 2019 and only raised after the 2020 termination, with no proof of any report made. The appeal was dismissed in its entirety with no orders as to costs, the Respondents not having defended the appeal.

Key legal issues

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01

Whether unproduced documents and unadopted witness statements could form the basis of the Trial Court's judgment

Holding

The Trial Court erred by considering the Respondents' documents that were neither produced nor adopted as exhibits

Reasoning

The Respondents filed responses, witness statements and a bundle of documents but never called witnesses to produce the documents or adopt the statements. The Trial Court expressly stated it was duty-bound to consider the Respondents' list of documents despite no defence evidence being tendered. Relying on South Nyanza Sugar Co Ltd v Mary A Mwita and Maurice O Okuthe v South Nyanza Sugar Co Ltd, the court held such materials form no part of the evidential record, and citing Adetoun Oladeji, a court cannot decide on a case of its own making.

p. 4
02

Whether the Appellant proved unfair termination

Holding

The Appellant failed to discharge the burden under section 47(5) of the Employment Act, and the Respondents were therefore never called upon to justify the termination

Reasoning

The termination letter produced by the Appellant cited failure to perform duties, unprofessional conduct and incompetence. Apart from asserting there was no performance-measurement policy, the Appellant adduced no evidence that she performed her duties, so the burden of proving unfair termination was not discharged and the burden never shifted to the employer under sections 43(1) and 47(5).

p. 4
03

Whether the sexual harassment claim was proved despite the Trial Court's failure to determine it

Holding

Although the Trial Court's failure to determine the pleaded sexual harassment claim occasioned a miscarriage of justice, the claim itself failed on the evidence as an afterthought

Reasoning

The court accepted that a pleaded sexual harassment claim must be determined, failure doing so occasioning a miscarriage of justice. However, the alleged acts occurred in January and March 2019, yet were only raised after termination in November 2020; no proof of the alleged report to the school Principal was tendered, and victims of sexual harassment are expected to report such acts immediately.

p. 5
04

The role of a first appellate court

Holding

A first appellate court must re-evaluate, re-assess and re-analyze the evidence on the record and determine whether the conclusions below should stand

Reasoning

Relying on Abok James Odera v John Patrick Machira, the court restated the primary role of a first appellate court to re-evaluate the evidence, while also citing United India Insurance v East African Underwriters on the limits of interfering with discretionary decisions.

p. 3

Legal principles established

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  • A witness statement filed but not adopted by its maker, and documents filed in a list of documents but not produced as exhibits, do not form part of the evidential record in a suit
  • It is not for a court to make a case of its own or formulate its own case from the evidence and decide on that basis, separate from the case the parties made
  • In an unfair termination complaint, the burden of proving unfair termination rests on the employee, and once discharged the burden of justifying the grounds for termination shifts to the employer
  • Failure by a court to determine a pleaded case of sexual harassment automatically occasions a miscarriage of justice

Court orders

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  1. 1.The appeal is found to be devoid of merit and is dismissed in its entirety
  2. 2.No orders on costs, the Respondents not having defended the appeal

Authorities

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Legislation

  • Employment Actsections 41, 42, 44, 45
  • Employment Act No 7 of 2007section 47(5), section 43(1), section 6
  • ILO Convention 111Not specified
  • UN Convention on Elimination of All Forms of Discrimination Against Women (CEDAW)Not specified

Cases cited (12)

  • Des Raj Sharma v Reginam
    (1953) 19 EACA 310
  • Michael Husa v The State
    (1994) 7-8 SCNJ 144
  • Mary Chemweno v Kenya Pipeline Company Limited
    (2014) eKLR
  • Abok James Odera t/a A J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates
    [2013] eKLR
  • United India Insurance Co Ltd v East African Underwriters (Kenya) Ltd
    [1985] EA
  • South Nyanza Sugar Co Ltd vs Mary A Mwita
    (2018) eKLR
  • Maurice O Okuthe vs South Nyanza Sugar Co Ltd
    (2019) eKLR
  • Adetoun Oladeji (NIG) vs Nigeria Breweries PLC
    SC 91/2002
  • Josephine M Ndungu & others v Plan International Inc
    [2019] eKLR
  • Muthaiga Country Club v Kudheiha Workers
    [2017] eKLR
  • CSL v CASN
    (2020) eKLR
  • JWK v (Particulars Withheld) College of Kenya & Another
    (2019) eKLR
On appeal from
Trial Court (magistrates' court, employment claim)
Not stated
Jurisdiction invoked
First appellate jurisdiction over the Trial Court's judgment (Court exercising appeal from subordinate court; specific provision not stated in the judgment)

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, "Hoka v Board of Management Manyonyi Girls Secondary School & another (Appeal E014 of 2022) [2023] KEELRC 2123 (KLR)", Case Analysis (2023). Appeal No E014 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2123/eng@2023-09-21

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