Colnet Limited v Wandimi (Employment and Labour Relations Appeal E009 of 2024) [2025] KEELRC 2263 (KLR)
The bottom line
#Equity Bank lost its appeal because skipping a court hearing turns your filed defence into mere allegations that courts cannot rely on.
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 appellant was condemned without a chance to be heard
- 2.Whether the trial court ought to have considered the weight in the appellant's evidence and pleadings
- 3.Whether the impugned judgment should stand
Key legal issues
#Whether the appellant was condemned unheard
No - the appellant was served with a hearing notice and affidavit of service was filed; its absence was a failure of diligence
The primary suit was allocated a hearing date of 25th October 2023 taken by the respondent's advocate's representative. On the hearing date the trial court satisfied itself that hearing notice was served and affidavit of service filed before allowing the claimant to prosecute her case. The appellant was therefore afforded an opportunity to be heard but failed to attend.
Whether the trial court erred in deciding on the respondent's evidence only
No - the appellant's defence and witness statement remained mere allegations without a witness adopting them in evidence
The appellant filed a defence and supporting evidence but failed to attend the hearing to tender it. Following Netah Njoki Kamau v Martin Wangugi Njoroge, a defence not supported by testimonial evidence remains mere allegations. Filed witness statements and documents cannot be used as evidence unless adopted by a witness or admitted by consent.
Whether the trial court's award of damages should be disturbed
No - the awards were supported by evidence, well reasoned and founded on the law
Applying Butt v Khan, an appellate court will not interfere with an award of damages unless it is inordinately high or low, proceeds on wrong principles, or misapprehends the evidence. It was not shown that the trial court considered irrelevant facts, ignored relevant facts, or arrived at an unsupported award. The awards of three months' compensation, one month's notice pay, salary for 11 days and house allowance therefore stand.
Legal principles established
#- On a first appeal the court must re-evaluate the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses
- Pleadings and witness statements not adopted by a witness in evidence remain mere allegations
- An appellate court will not disturb an award of damages unless it is shown to be an entirely erroneous estimate or to have proceeded on wrong principles
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Employment and Labour Relations Court (trial, Hon. Gituma SRM)
- ELRC Cause No. E070 of 2022
- Jurisdiction invoked
- First appellate jurisdiction over the ELRC Cause (Employment and Labour Relations Court Procedure Rules, 2016; first appeal by way of rehearing)
Relief refused
#Setting aside of the judgment in ELRC Cause No. E070 of 2022 and substitution with an order dismissing the suit
The appellant was served with a hearing notice, failed to attend court, tendered no evidence to prosecute its defence, and the awards were well founded
Costs of the appeal to the appellant
Appeal dismissed; costs awarded to the respondent instead
Costs
Appeal dismissed with costs 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.
this court finds that the appellant was given an opportunity to be heard but failed to be diligent. Consequently, it cannot be right to argue that it was condemned without any opportunity to be heard.
the defence remained mere allegations as long as there was no evidence adduced by a witness to prosecute it.
An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate.
Consequently, I dismiss the appeal with costs to the respondent for lack of merits.
Issues in the judgment
#The Memorandum of Response is described as admitting employment but states that 'it employed the appellant' where the respondent is meant - a party-name confusion in the judgment text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Colnet Limited v Wandimi (Employment and Labour Relations Appeal E009 of 2024) [2025] KEELRC 2263 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 8th April 2024 (arising from ELRC Cause No. E070 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2263/eng@2025-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.