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ELRCDismissedMemorandum of appeal dated 5th April 2024 (Kimilili Law Courts appeal; exact number not stated in judgment)· [2025] KEELRC 2609 (KLR)

Vineyard International Company Limited v Murunga (Appeal E007 of 2024) [2025] KEELRC 2609 (KLR)

Employment and Labour Relations Court of Kenya (sitting at Bungoma, on appeal from Kimilili magistrates' court)
26 September 2025
DNDavid Nderitu
2,710 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer lost its appeal after trying to reopen an unfair dismissal award using a contract it never produced at trial.

What this practically means

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Executive summary

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The trial court had declared the respondent's summary dismissal (as a winch operator, on allegations of theft of fuel) unlawful and unfair, awarding two months' salary in lieu of notice of Kshs191,617 and costs, while disallowing reinstatement and unpaid salary. The appellant's application dated 11th January 2024 seeking review of the awards on notice pay and 12-months' compensation, arguing the respondent was on a four-month non-renewable fixed-term contract, was dismissed with costs by a ruling of Honourable Gladys Adhiambo dated 2nd April 2024. The appellant appealed to this court, contending the trial magistrate erred in failing to cap compensation per the contract dated 27th August 2021. The respondent opposed, submitting the contract was never produced at trial, was an afterthought, and that no error apparent on the face of the record was established under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, relying on the Wambora and Mbogo principles. The court, as a first appellate court, re-evaluated the record and held that the purported contract, always in the appellant's possession and never adduced at trial, did not constitute discovery of new and important matter, and that admitting it would prejudice the respondent. It found no error apparent on the face of the record, declined to countenance an appeal through the back door, and found no basis to interfere with the trial court's discretion. The appeal was dismissed with costs of both the appeal and the entire trial awarded to the respondent.

Key legal issues

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01

Whether the trial court correctly dismissed the application for review under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules

Holding

Yes. The review was anchored solely on a contract never produced at trial, which was all along in the appellant's possession; this was not discovery of new evidence and no error apparent on the face of the record was shown.

Reasoning

The court re-evaluated the review application and supporting and replying affidavits. The sole basis was a purported contract dated 27th August 2021 not adduced at trial, with no explanation for its non-production. The presumption was that the contract was always in the appellant's possession, which does not amount to discovery of new and important matter, and admitting it would prejudice the respondent who had not seen it.

p. 5
02

Whether the appellate court should interfere with the trial court's discretion

Holding

No. No factual or legal reason justified interference; even a different conclusion on a trial appeal would not matter since the appeal is only against the review ruling.

Reasoning

Applying the Wambora and Mbogo principles on review of discretionary decisions, the court held the appellant had not shown the magistrate misdirected himself or that the decision was clearly wrong producing apparent injustice. The appeal was effectively an attempt to re-litigate the judgment.

p. 6

Legal principles established

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  • An appeal against the dismissal of a review application is confined to the review ruling and cannot be used as a vehicle to challenge the underlying judgment.
  • Evidence that was always in a party's possession but not produced at trial does not constitute discovery of new and important matter for review.

Court orders

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  1. 1.This appeal is hereby dismissed for lack of merits.
  2. 2.Costs for both the appeal and the entire trial in the lower trial court to the respondent.

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45

Cases cited (5)

  • David Gichana Omuya V Mombasa Maize Miller Ltd
    (2014) KEELRC 526 (KLR)
  • Republic V Advocates Disciplinary Tribunal Ex parte Apollo Mboya
    (2019) eKLR
  • Muyodi V Industrial & Commercial Development Corporation & Another
    (2006) 1 EA 243
  • Parliamentary Service Commission V Martin Nyaga Wambora & Others
    (2008) eKLR
  • Mbogo & Another V Shah
    (1968) EA
On appeal from
Kimilili Law Courts (trial court presided over by Honourable Gladys Adhiambo)
Employment claim; statement of claim dated 2022 (number not stated)
Jurisdiction invoked
First appellate jurisdiction over the ruling of the lower trial court dismissing an application for review under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules

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, "Vineyard International Company Limited v Murunga (Appeal E007 of 2024) [2025] KEELRC 2609 (KLR)", Case Analysis (2025). Memorandum of appeal dated 5th April 2024 (Kimilili Law Courts appeal; exact number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2609/eng@2025-09-26

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