Kithinji v Jamii Co-operative Savings & Credit Society Ltd (Cause 707 of 2017) [2025] KEELRC 648 (KLR)
The bottom line
#A Kenyan court agreed a judge had overlooked two job claims, but the worker still lost because he couldn't prove either one.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application for review was properly before the court and brought without unreasonable delay
- 2.Whether the trial judge's failure to consider the prayers for gratuity and untaken leave days constituted an error apparent on the face of the record warranting review
- 3.If so, whether the claim for gratuity at one month's salary for every year worked for twenty-five years was proved
- 4.If so, whether the claim for eighty-eight untaken annual leave days was pleaded with specificity and proved
Key legal issues
#Whether the failure to determine the gratuity and leave prayers was an error apparent on the face of the record
Yes - the court found on the face of the record of the judgment that the two prayers were not considered, and held the application for review was properly before the court
Relying on Kenya Building Construction Timber & Furniture Employees Union v Sagoo & Nyota Limited, the court held that an omission to consider a relief sought is an error on the face of the record. The application was filed about a month after judgment, which the court did not find unreasonable, and the trial judge was no longer at the station. Review jurisdiction was therefore properly invoked.
Whether the claim for gratuity was proved on review
No - the claim was disallowed because no contract of employment providing for gratuity was found on the record
The court applied Postal Corporation of Kenya v Andrew K. Tanui as upheld in Bamburi Cement Limited v William Kilonzi, that gratuity is payable on wrongful dismissal only where provided for in the contract. On perusal of the record, no contract of employment supporting the gratuity claim was found; the document KMJK-1 concerned termination notice, and KMJK-2 was untitled, unsigned in places and of unestablished authenticity.
Whether the claim for 88 untaken annual leave days was proved
No - the claim failed because it was not pleaded with specificity and the claimant did not discharge the burden of proof under Sections 107 and 108 of the Evidence Act
Leave falls under continuing injury and does not crystallize merely on a finding of unfair termination. The claimant pleaded 88 days over a 25-year employment without stating the accrual period or whether leave was applied for and refused. Without such specificity, the duty to produce leave records did not shift to the employer, and expecting the employer to produce records would be a fishing expedition.
Legal principles established
#- An omission by a court to consider and make a finding on a relief sought in the pleadings is an error apparent on the face of the record justifying review
- Gratuity is payable where the dismissal is unjustified and wrongful only if it is provided for in the contract of employment
- A claimant must plead a claim for untaken leave with specificity before the burden shifts to the employer to produce leave records
Court orders
#- 1.The application dated 3rd April 2024 and amended on 20th May 2024 is dismissed with costs to the Respondent
- 2.Claims for gratuity and untaken leave days, reviewed by the court, are disallowed for failure of proof
- 3.It is so Ordered
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Rule 33 of the Employment and Labour Relations Court (Procedure) Rules 2016 (as amended, Rule 74, 2024), Sections 1A and 3A of the Civil Procedure Act and Order 45 Rules 1, 2 and 3, Order 51 of the Civil Procedure Rules, 2010
Relief refused
#Review of the judgment of Ocharo Kebira J dated 8th March 2024
Although an error of omission was established warranting review, on rehearing both claims were found unproved, so the application lacked merit and was dismissed
Payment of gratuity at one month's salary per year worked for twenty-five years
No contract of employment providing for gratuity was found on the record; the alleged HR code was untitled and unsigned
Compensation for eighty-eight untaken annual leave days
The claim was not pleaded with specificity; the burden of proof was not discharged and the duty to produce leave records did not crystallize
Costs
Costs of the application to the Respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The application dated and amended on the 20th May 2024 is held to lack merit and dismissed with costs to the Respondent. It is so Ordered.
an omission to consider and make a finding on a relief sought is an error on the face of the record
But where, like here, the dismissal is not justified and is wrongful the employee will be awarded gratuity if it is provided for in the contract of employment
It would be a fishing expedition to expect the employer to produce records without specificity of the claim.
Issues in the judgment
#Paragraph numbering in the judgment is erratic and repetitive - multiple distinct sections are all numbered '13'
The grounds of opposition are dated inconsistently as 21st June 2024 and 24th June 2024 in different passages
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kithinji v Jamii Co-operative Savings & Credit Society Ltd (Cause 707 of 2017) [2025] KEELRC 648 (KLR)", Case Analysis (2025). Cause 707 of 2017 (Review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/648/eng@2025-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.