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ELRCPartially AllowedAppeal from Kakamega MELRC Cause No. 186 of 2019 (Memorandum of Appeal dated 18th July 2023)· [2024] KEELRC 197 (KLR)

West Kenya Sugar Company Limited v Shayo (Employment and Labour Relations Appeal E006 of 2023) [2024] KEELRC 197 (KLR)

Employment and Labour Relations Court (High Court, sitting at Kakamega)
8 February 2024
7,149 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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The Employment Court in Kakamega overturned an unfair dismissal award because the worker never proved he was actually fired, and his amended claim was filed without court permission.

What this practically means

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Executive summary

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This is a first appeal by West Kenya Sugar Company Limited against the judgment of Hon. Dolphina Alego (SPM) delivered on 20th March 2023 in Kakamega MELRC Cause No. 186 of 2019, in which the trial magistrate declared the respondent claimant's dismissal unfair and entered judgment for the claimant 'as prayed'. Jemimah Keli, J, guided by the Selle v Associated Motor Boat Company principles allowing re-evaluation of evidence, framed five issues. On the pleadings, the court found that a Notice of Motion dated 20th April 2021 seeking leave to amend the Statement of Claim was never heard or determined; since pleadings had closed, leave was mandatory under Rules 13(4) and 14(6) of the ELRC (Procedure) Rules, 2016, and service of the draft amendment on the appellant did not amount to leave. The Amended Statement of Claim was struck off, leaving the unquantified claim of 5th November 2019 on record. On the substance, the court held that the claimant, who could not maintain a consistent date of dismissal (pleading February 2017 but testifying to August 2017), failed to discharge his burden under Section 47(5) of the Employment Act to prove unfair termination. The Driver Cane Haulage and Payment Reports produced by consent showed he was a piece-rate worker paid per tonne who last worked on 17th March 2017, with the April payment relating to March work. The court further held the trial magistrate erred in granting reliefs in blanket form when special damages were neither pleaded with exactitude nor proved, applying Nyatogo v Mini Bakeries and Jogoo Kimakia Bus Services. The appeal was allowed, the trial judgment and decree set aside, the claim dismissed, and costs awarded to the appellant.

Key legal issues

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01

Whether the Amended Statement of Claim dated 20th April 2021 was properly on record

Holding

It was incompetent and struck off; the claim on record remained the Statement of Claim dated 5th November 2019.

Reasoning

Pleadings had closed 14 days after service of the defence under Rule 13(4) of the ELRC (Procedure) Rules, 2016, so leave was required under Rule 14(6). The Notice of Motion dated 20th April 2021 seeking leave to amend was never heard or determined, and the 16th August 2021 mention only fixed a hearing date. Service of the draft on the Appellant did not equate to leave of court, so the draft amendment was never admitted to the record.

p. 8
02

The nature of employment and whether the Respondent was unfairly dismissed

Holding

The Respondent was a piece-rate worker and was not terminated or dismissed by the Appellant; the claim of unfair dismissal failed.

Reasoning

Under Section 47(5) of the Employment Act the burden of proving unfair termination rests on the employee. The Respondent pleaded dismissal in February 2017 but testified to being dismissed in August 2017, an unpleaded variation. Documentary evidence (Driver Cane Haulage Report and Payment Report produced by consent) showed he worked on 15th and 17th March 2017 and was paid in April 2017 for that March work, defeating the trial court's inference that April payment disproved abscondment. He produced no proof of work after March 2017.

p. 12
03

Whether the trial magistrate's judgment was ambiguous and imprecise

Holding

Yes; the magistrate granted the reliefs 'as prayed' in blanket form without determining whether the special damages were specifically pleaded and proved.

Reasoning

The claim on record sought reliefs 'Per Scale' with no particulars of amounts or periods, contrary to the requirement that special damages be pleaded with exactitude. The court adopted the Court of Appeal's reasoning in Nyatogo v Mini Bakeries and Jogoo Kimakia Bus Services, that special damages must be specifically pleaded. Judgment entered 'as prayed' without particulars was therefore erroneous.

p. 13
04

Whether the Respondent was entitled to the reliefs sought

Holding

No; the reliefs fell away because termination was not proved and special damages were neither pleaded nor proved.

Reasoning

Having found no dismissal, notice pay and 12 months' compensation were unavailable. The unquantified prayers (prorate leave, underpayment, public holidays, overtime, rest days, house allowance) were special damages not pleaded with the required exactitude, so the magistrate's blanket award could not stand.

p. 14

Legal principles established

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  • An amendment to pleadings filed after the close of pleadings requires leave of the court; service of a draft amendment on the other party does not amount to leave, and an unadmitted draft amended claim is incompetent.
  • The burden of proving unfair termination rests on the employee, and where the employee cannot even establish the date of dismissal, the claim fails.
  • Special damages must be specifically pleaded and proved with exactitude; a court may not enter judgment 'as prayed' in blanket form without particulars.

Court orders

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  1. 1.The appeal dated 18th July 2023 is allowed in its entirety
  2. 2.The judgment of Honourable Dolphina Alego (SPM) dated 20th March 2023 in Kakamega MELRC Cause No. 186 of 2019 and the consequential decree are set aside
  3. 3.The Statement of Claim dated 5th November 2019 is dismissed
  4. 4.The Amended Statement of Claim dated 20th April 2021 is struck off for being filed without leave of the court
  5. 5.Costs of the appeal and the suit awarded to the Appellant

Authorities

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Legislation

  • Employment ActSection 47(5)
  • Employment ActSections 41, 42(1), 43, 45, 46, 47, 49(c), 35
  • Civil Procedure ActSection 100
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 13(4); Rule 14(6)

Cases cited (15)

  • Selle And Another v Associated Motor Boat Company Ltd & Others
    [1968] EA 123
  • David Kahuruka Gitau & Another v Nancy Ann Wathithi Gatu & Another
    Nyeri HCCA No. 43 of 2013
  • Nicholas Muasya Kyule v Farmchem Limited
    (2012) eKLR
  • Kennedy Muriuki Gichangi v County Government of Kirinyaga
    (2019) eKLR
  • Wilfred K. Onyango v DHL Excel Supply Chain Kenya Limited
    (2017) eKLR
  • Krystalline Salt Limited v Kwekwe Mwakele & 67 Others
    (2017) eKLR
  • Edwin Kabogo Munene v Equity Bank Limited
    Industrial Cause Number 1123 of 2012 (21 March 2012)
  • Walter Ogal Onuro v Teachers Service Commission
    (2013) eKLR
  • Alphonse Machanga Mwachanya v Operation 680 Limited
    (2013) eKLR
  • Donald Odeke v Fidelity Security Limited
    Cause Number 1998 of 2011
  • Nyatogo v Mini Bakeries Limited
    Civil Appeal E38 of 2021 (2023) KEHC 1593 (KLR) (10 March 2023)
  • Mariam Magherema Ali v Jackson M. Nyambu t/a Sisera Store
    Civil Appeal No. 5 of 1990
  • Idi Ayub Shaban v City Council of Nairobi
    1982-1988 1 KAR 681
  • China Wu Yi Limited & Another v Irene Leah Musau
    (2022) eKLR
  • Jogoo Kimakia Bus Services Ltd v Electrocom International Ltd
    (1992) KLR 177
On appeal from
Chief Magistrate's Court, Kakamega (MELRC)
Kakamega MELRC Cause No. 186 of 2019
Jurisdiction invoked
First appellate jurisdiction over the Magistrates' Court (Employment and Labour Relations Cause), per the memorandum of appeal; appeal canvassed by written submissions

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "West Kenya Sugar Company Limited v Shayo (Employment and Labour Relations Appeal E006 of 2023) [2024] KEELRC 197 (KLR)", Case Analysis (2024). Appeal from Kakamega MELRC Cause No. 186 of 2019 (Memorandum of Appeal dated 18th July 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/197/eng@2024-02-08

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