Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCOtherAppeal No E010 of 2022· [2024] KEELRC 1776 (KLR)

Kamau & 35 others v Sala Terrena Creative Construction Ltd (Appeal E010 of 2022) [2024] KEELRC 1776 (KLR)

Employment and Labour Relations Court
4 July 2024
ANAgnes Kitiku Nzei
2,323 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

The Employment Court sent this wage-claims case back for a fresh trial because the workers' claims were filed as documents instead of being proved through witness testimony.

What this practically means

#

Executive summary

#
The 36 Appellants, formerly Claimants in Malindi Chief Magistrate's Court Employment Suit No 7 of 2021, sued their former employer claiming house allowance, accrued leave pay, NSSF contributions, notice pay, compensation for unfair termination, severance pay under Section 40(1)(g) of the Employment Act, certificates of service, costs and interest. They pleaded employment between 2005 and 2014, termination in 2018/2019 without notice, and unpaid dues. The Respondent denied the claims, asserting the contracts were fixed-term and had expired or the employees resigned. The trial court dismissed the claim with no order as to costs on 24/8/2022. On appeal, Nzei J reaffirmed the duty of a first appellate court to re-evaluate evidence. However, the Court found it could not properly undertake that exercise because the Appellants' schedules detailing their claims were produced as exhibits rather than proved through evidence, and the recorded testimony, especially under cross-examination, was indecipherable. Holding that pleadings are not evidence, the Court exercised its discretion in the interest of justice to set aside the trial judgment and remit the file to the Chief Magistrate's Court at Malindi for a fresh trial before a magistrate other than Hon. D. Wasike, to be conducted on a priority basis. Each party was ordered to bear its own costs of the appeal. The appeal was thus neither allowed nor dismissed on the merits but resolved by an order for retrial.

Key legal issues

#
01

Duty of a first appellate court

Holding

The first appellate court re-evaluates the evidence, but only the evidence actually presented at trial can be subjected to fresh scrutiny.

Reasoning

The Court invoked the settled principle from Selle v Associates Motor Boat Co and Peters v Sunday Post that a first appellate court must re-evaluate the whole evidence. However, it found that the Appellants' schedules were produced as exhibits rather than proved by evidence, and the recorded testimony was too unclear, making meaningful re-evaluation impossible.

p. 7
02

Status of pleadings versus evidence

Holding

Pleadings cannot be produced as exhibits; facts pleaded must be proved by evidence.

Reasoning

The memorandum of claim with its three schedules setting out each claimant's employment dates and claims was produced as an exhibit rather than proved through testimony. The Court held this was improper, since pleadings are statements of fact requiring proof, and this defect undermined the appellate court's ability to evaluate the claims.

p. 7

Legal principles established

#
  • Pleadings are not evidence and cannot be produced as exhibits; pleaded facts must be proved by evidence at trial.
  • A first appellate court must re-evaluate the evidence and arrive at its own independent judgment, mindful that it did not see or hear the witnesses.

Court orders

#
  1. 1.The trial Court's judgment delivered on 24/8/2022 is set aside
  2. 2.The trial Court's file is sent back to the Chief Magistrate's Court at Malindi for fresh trial by a Magistrate other than Hon. D. Wasike, on priority basis
  3. 3.Each party shall bear its own costs of the appeal

Authorities

#

Legislation

  • Employment ActSection 40(1)(g); Section 31

Cases cited (3)

  • Mursal & another v Manesa
    [2022] eKLR
  • Selle & another v Associates Motor Boat Co. Ltd & another
    [1968] EA 123
  • Peters v Sunday Post Ltd
    [1958] EA 424
On appeal from
Chief Magistrate's Court at Malindi (Employment suit)
Employment suit No 7 of 2021
Jurisdiction invoked
First appellate jurisdiction over the trial Chief Magistrate's Court

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kamau & 35 others v Sala Terrena Creative Construction Ltd (Appeal E010 of 2022) [2024] KEELRC 1776 (KLR)", Case Analysis (2024). Appeal No E010 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1776/eng@2024-07-04

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