Too v Radar Limited (Appeal E021 of 2023) [2025] KEELRC 680 (KLR)
The bottom line
#A Kenyan employment appeal failed because the worker had no documents proving overtime and holidays — persuasive arguments alone cannot replace evidence in court.
What this practically means
#Executive summary
#Key legal issues
#Whether remedies can be granted or enhanced on appeal based on submissions
No. Submissions are not evidence and cannot replace evidence; the Appellant bore the burden of proving overtime, off-duty days, public holidays, and the quantum of underpayment, and failed to do so.
The Appellant pleaded no specific amounts for underpayment or overtime, and in cross-examination conceded he had no documents confirming overtime, off-duty days or public holidays worked. He did not invoke the court's assistance to compel production of documents said to be in the Respondent's custody. His closing submissions could not cure this evidential shortfall, per David Odhiambo Apel v. Telkom Kenya Limited. The appeal therefore fails and the Trial Court's judgment stands undisturbed.
Enhancement of annual leave award
The prayer fails because the Trial Court granted no annual leave award at all; there is nothing capable of enhancement.
The Trial Court found the Appellant had not established the annual leave claim and declined it with the other unproven prayers. An appellate court cannot enhance an award that was never made, so this ground of appeal is without foundation and is rejected.
Legal principles established
#- Submissions are neither evidence, nor a replacement for evidence, and a court cannot grant or enhance remedies on the strength of submissions alone.
Court orders
#- 1.The Appeal is declined.
- 2.No order on the costs.
- On appeal from
- The Trial Court (first-instance employment court, not named in the judgment)
- Not stated in judgment
- Jurisdiction invoked
- First appeal on the Record of Appeal to the Employment and Labour Relations Court; enabling provision not stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Too v Radar Limited (Appeal E021 of 2023) [2025] KEELRC 680 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/680/eng@2025-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.