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ELRCPartially AllowedELRC Appeal from CMEL Case No. 10A of 2020 (Kajiado); Memorandum of Appeal dated 7th July 2022· [2024] KEELRC 133 (KLR)

Isinya Roses Limited v Kyalo (Appeal E109 of 2022) [2024] KEELRC 133 (KLR)

Employment and Labour Relations Court
5 February 2024
JGJacob Gakeri
4,548 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court cut a wrongful dismissal payout roughly in half, ruling employees must prove every claim and employers cannot demand a second chance after ignoring court dates.

What this practically means

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Executive summary

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This is a first appeal from the judgment of Hon. Irene Kahuya in CMEL Case No. 10A of 2020 at Kajiado delivered on 26th January 2022, in which the trial magistrate awarded the claimant all reliefs sought for unfair termination of employment after the employer (appellant) failed to attend the ex parte hearing. The appellant challenged the finding that the suit was undefended, alleging electronic filing of a response, and complained of lack of service of pre-trial and hearing dates and denial of fair hearing. The court found no evidence of the alleged electronic filing, held that service was directed and effected with an Affidavit of Service on record, and that a party represented by counsel who was afforded the opportunity but did not attend could not later insist on the right to be heard. It further held that an employee must prove his case even in an undefended suit. Interfering with the reliefs, the court found the trial magistrate misapprehended facts and misdirected herself: unpaid salaries for March and April 2020 and 2 days' leave were not proved; service pay was awarded without considering NSSF membership under Section 35(6)(d) of the Employment Act; and maximum 12 months' compensation under Section 49(1)(c) was awarded without reasons or regard to Section 49(4) parameters. The appeal was declared partially successful: compensation was substituted at 6 months' gross salary (Kshs.421,680/=), and the service pay, unpaid salary, and leave awards were set aside. Each party was ordered to bear its own costs in the appeal.

Key legal issues

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01

Whether the suit was defended

Holding

The appellant failed to adduce evidence that its response and witness statement were electronically filed; the trial court's finding that the suit was undefended could not be disturbed

Reasoning

The appellant relied on the Record of Appeal to assert electronic filing of a response dated 18th January 2021, but none of the documents bore a filing date and no evidence such as email, invoice or payment of fees was produced. As the party alleging filing, the appellant bore the burden of proving it, and failing that the trial magistrate's finding based on her record stood.

p. 5
02

Whether the appellant was denied a fair hearing on service and pre-trial compliance

Holding

The trial court directed and confirmed service of the pre-trial date and hearing date, with an Affidavit of Service on record; the appellant, represented by counsel, chose not to attend and was not denied its day in court

Reasoning

The record showed service directions on 18th August 2021 and 13th October 2021, an Affidavit of Service for service effected on 19th October 2021, and counsel on record. It is not the court's duty to ensure parties comply with pre-trial directions before fixing a hearing date; requiring that would stall proceedings and surrender control of proceedings to parties in an adversarial system.

p. 6
03

Whether the reliefs awarded by the trial court were justified

Holding

The awards for unpaid salaries (March and April 2020), 2 days' leave, service pay and 12 months' compensation were not proved or properly justified and were set aside or reduced; compensation substituted at 6 months' gross salary (Kshs.421,680/=)

Reasoning

The written statement gave no basis for part salaries for March and April 2020 nor for the accrued leave days. Service pay was awarded without considering NSSF membership under Section 35(6)(d). Maximum compensation under Section 49(1)(c) was awarded without addressing the Section 49(4) parameters. Considering the short employment of about 1 year and 5 months and other factors, 6 months' gross pay was deemed appropriate.

p. 9

Legal principles established

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  • The duty of a first appellate court is to re-evaluate the evidence before the trial court and the judgment and make its own conclusions; a first appeal is a re-trial
  • An employee must prove his case to the required standard even where the claim is undefended
  • Maximum compensation under Section 49(1)(c) of the Employment Act must be justified by reasons grounded on the Section 49(4) parameters
  • The right to be heard cannot be insisted on where a party was afforded the opportunity but failed to utilise it
  • An appellate court may interfere with a trial court's judgment only on defined grounds, including misdirection on law, misapprehension of facts, or taking into account irrelevant considerations

Court orders

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  1. 1.The award of Kshs.843,360/= as 12 months compensation is set aside and substituted with an award of Kshs.421,680/= (6 months gross salary)
  2. 2.The award of service pay of Kshs.35,140/= is set aside
  3. 3.The award of Kshs.30,455/= as unpaid salary for March 2020 and Kshs.32,797/= for April 2020 is set aside
  4. 4.The award of 2 days leave balance Kshs.6,280/= is set aside
  5. 5.Each party to bear its own costs in this appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure ActSection 1A(1) and (2)
  • Civil Procedure ActSection 1B
  • Civil Procedure (Amendment) Rules, 2020Order 11 Rule 2 Sub-rule 2(d)
  • Civil Procedure Rules, 2010Order 10 Rule 11
  • Civil Procedure RulesOrder 21 Rule 1
  • Employment Act, 2007Sections 35(6)(d), 41, 45, 47(5), 49(1)(c), 49(4)
  • Employment and Labour Relations Court Act, 2011principal objectives

Cases cited (10)

  • United India Insurance Co. Ltd V East African Underwriters (Kenya) Ltd
    (1985) eKLR
  • Mombasa Cement Ltd V Speaker, National Assembly & another
    (2018) eKLR
  • Samuel Gathu Kamau V Peter Kaniu Gathungu
    (2006) eKLR
  • Interchmie EA Ltd V Nakuru Veterinary Center Ltd
    HCCC No. 168b of 2000
  • Janet Kaphiphe Ouma & another V Marie Stopes International Kenya Kisumu
    HCCC No. 68 of 2017
  • Edward Muriga Through Stanley Muriga V Nathaniel D. Schulter
    Civil Appeal No. 23 of 1997
  • Mohamed Mohamoud Jabane V Highstone Butty Tongoi Olenja
    (1986) eKLR
  • Selle & another V Associated Motor Boat Co. Ltd & another
    (1968) EA 123
  • Nicholus Kipkemoi Korir V Hatari Security Guards Ltd
    (2016) eKLR
  • Ol Pejeta Ranching Co. Ltd V David Wanjau Muhoro
    null
On appeal from
Magistrates' Court at Kajiado (CMEL)
CMEL Case No. 10A of 2020
Jurisdiction invoked
First appellate jurisdiction over the magistrate's court employment claim (Employment and Labour Relations Court Act, 2011)

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, "Isinya Roses Limited v Kyalo (Appeal E109 of 2022) [2024] KEELRC 133 (KLR)", Case Analysis (2024). ELRC Appeal from CMEL Case No. 10A of 2020 (Kajiado); Memorandum of Appeal dated 7th July 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/133/eng@2024-02-05

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