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ELRCDismissedKakamega ELRC Appeal No. E009 of 2024 (originally Bungoma ELRC Appeal No. E009 of 2024)· [2025] KEELRC 2573 (KLR)

Indeche v Butali Sugar Mills Limited (Appeal E015 of 2024) [2025] KEELRC 2573 (KLR)

Employment and Labour Relations Court
22 September 2025
2,875 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a worker's injury appeal because a gate-pass and sick-sheet were not enough to prove he was actually employed.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Kakamega (transferred from Bungoma) against a judgment dated 19th March 2024 dismissing the appellant's suit for personal injuries allegedly sustained on 2nd June 2014 while working as a casual labourer for the respondent, when a tractor reversed and a metal rod struck his head. The appeal, canvassed by written submissions, raised three grounds: liability for the accident, reliance on secondary evidence, and the dismissal being against the weight of evidence. The respondent argued the appeal was incompetent for want of an attached decree, and that the appellant failed to prove employment or negligence. The court held the omission of the decree was not fatal, following Emmanuel Ngade Nyoka v Kitheka Mutisya Ngata, and, re-evaluating the evidence as a first appellate court, found the gate-pass and sick-sheet inadequate proof of employment: neither bore the issuing officer's name or the respondent's stamp, no workmate testified, no wage-payment trail was produced, and the respondent's payroll and master-roll excluded the appellant. The court affirmed the lower court's finding that the burden of proof under Section 107 of the Evidence Act was not discharged, rendering the remaining issues academic. Obiter, the court noted that even assuming employment, the lower court lacked jurisdiction under WIBA, the claim having ought to have been lodged with the Director. The appeal was dismissed in its entirety with costs to the respondent.

Key legal issues

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01

Whether omission of a copy of the decree from the record of appeal rendered the appeal incompetent

Holding

The omission is not fatal or prejudicial since the judgment is on record and the court can determine the appeal from the proceedings and judgment

Reasoning

The court held that courts must dispense substantive justice rather than be mechanical and technical. A copy of the judgment was in the record and the respondent did not deny it truly reflected the lower court's outcome. The court agreed with and was bound by the Court of Appeal's position in Emmanuel Ngade Nyoka v Kitheka Mutisya Ngata.

p. 4
02

Whether an employment relationship existed between the appellant and the respondent at the material time

Holding

No employment relationship was established; the gate-pass and sick-sheet did not prove employment, and the payroll and master-roll excluded the appellant

Reasoning

The gate-pass could be issued to any visitor and did not designate purpose of entry; the sick-sheet lacked the issuing officer's name and official stamp. The appellant called no workmate and produced no wage-payment trail, while the respondent's evidence from Frodak (K) Ltd's records showed he was not among the sourced casual labourers. The burden under Section 107 of the Evidence Act was not discharged.

p. 5
03

Whether the lower trial court had jurisdiction over the claim under WIBA

Holding

Even assuming employment, the lower court lacked jurisdiction since the claim ought to have been lodged with the Director under WIBA

Reasoning

The court raised this issue sua sponte, noting WIBA was in force when the appellant lodged the claim in April 2017. Although neither raised at trial nor on appeal, the court considered the claim incurably defective and without jurisdiction, and ought to have been dismissed in limine.

p. 6

Legal principles established

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  • Failure to include a decree in a record of appeal is a serious omission but not fatal, as courts must dispense substantive justice rather than adhere to technicality
  • A first appellate court must re-evaluate the evidence and reach its own conclusions bearing in mind it neither heard nor recorded the trial evidence
  • He who alleges must prove; the burden lay on the appellant to prove the employment relationship
  • A claim under the Work Injury Benefits Act ought to have been lodged with the Director, and the lower trial court lacked jurisdiction to entertain it

Court orders

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  1. 1.This appeal is hereby dismissed in its entirety and the judgment of the lower trial court upheld and affirmed.
  2. 2.Costs to the respondent.

Authorities

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Legislation

  • Civil Procedure RulesOrder 42(2)
  • Evidence ActSection 107
  • Civil Procedure ActSections 1A & 1B
  • Work Injury Benefits Act (WIBA)

Cases cited (5)

  • Selle & Another V Associated Motor Boat Company Ltd
    (1968) EA 123
  • West Kenya Sugar Co. Ltd
    (2023) KEELRC 939
  • Rentworks East Africa Limited V Jeniffer Kinya Simon
    (2022) eKLR
  • Gideon K. Kemboi V Nyayo Tea Zone Development Corporation
    (2015) eKLR
  • Emmanuel Ngade Nyoka V Kitheka Mutisya Ngata
    (2017) eKLR
On appeal from
Lower trial court (magistrates' court, originally filed in Bungoma)
Suit filed April 2017 (number not stated)
Jurisdiction invoked
First appellate jurisdiction over the lower trial court's decision (appeal transferred from Bungoma ELRC to Kakamega ELRC); no specific constitutional/statutory provision quoted

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Indeche v Butali Sugar Mills Limited (Appeal E015 of 2024) [2025] KEELRC 2573 (KLR)", Case Analysis (2025). Kakamega ELRC Appeal No. E009 of 2024 (originally Bungoma ELRC Appeal No. E009 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2573/eng@2025-09-22

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