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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No. 120 of 2012

Simba Colt Motors Limited v James Gitahi Mwangi [2015] KECA 385 (KLR)

Court of Appeal
25 September 2015
4,837 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal threw out a Sh.126 million award because the trial court never ruled on each claim and wrongly told the company to calculate its own liability.

What this practically means

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Executive summary

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The respondent, a former fleet/government sales manager of the appellant employed from July 2000, claimed unpaid special incentive commission at 4.5% of sales, fleet incentive, standard commission, bull bar entitlements, salary for 20 days worked and accumulated leave, totalling over Sh.126 million, alleging commissions were instead paid to a third party, Hitesh Patel. On 1st February 2011 the Industrial Court awarded him his claims for the period from 16th August 2006 to May 2009, directing the appellant itself to calculate and pay the commission, while granting the appellant one month's salary in lieu of notice on its counterclaim. The appellant appealed on ten grounds, arguing the award was inconclusive and ambiguous because the court framed five issues but determined only one, shifted the burden of proof, awarded unproved claims, and unlawfully delegated computation to a party. The Court of Appeal, as a first appellate court, re-evaluated the evidence and allowed the appeal. It held that an Industrial Court award is a judgment which must determine each framed issue with reasons; that assessing damages is a purely judicial function that cannot be delegated to a party; and that the specific commission claims were special damages which the respondent failed to prove. The Court declined to remit the cause for computation, holding that a suit cannot be tried in instalments where the underlying issues were never determined. The trial court's decision was set aside with costs to the appellant in both courts. The respondent retained the Sh.6 million already paid.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether the trial court determined the issues in dispute
  2. 2.whether the appellant ought to have been directed by the court to compute the award and pay the respondent
  3. 3.whether to remit the cause to the Industrial Court for computing the dues

Key legal issues

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01

Whether the Industrial Court determined the five issues it framed in dispute

Holding

The court was bound to make a finding with reasons on each framed issue; failing to do so rendered the award defective and this ground succeeded.

Reasoning

The trial court framed five issues at the outset but determined only one composite issue. Relying on Order 20 rules 4 and 5 of the Civil Procedure Rules and treating the award as a judgment, the Court held that once issues are framed, the court must state its finding with reasons on each separate issue. Both parties pleaded and gave evidence on each claim, so each aspect of the Sh.126.7 million claim required individual determination.

p. 7
02

Whether the trial court could direct the appellant to compute the award and pay it

Holding

Directing a party to compute damages abdicates the judicial function and is a nullity.

Reasoning

The Court adopted its prior holdings in Telkom Kenya Ltd v John Ochanda and Kenya Revenue Authority v Menginya Salim Murgani that computation and assessment of entitlements reside in the courts, not in defendants. The trial court abdicated its role by ordering the appellant to calculate and pay the commission, and that ground of appeal was upheld.

p. 7
03

Whether the cause should be remitted to the Industrial Court for fresh computation

Holding

Remittal was refused because the issues were never determined and the special damages claimed were not proved.

Reasoning

Since the trial court failed to determine each issue, there was no basis on which a computation could be undertaken; a suit cannot be tried in instalments or parties given a second bite at the cherry. The specific claims (fleet incentive, bull bars, standard commission, salary for 20 days) were pleaded as special damages but were not proved with the required certainty, so remittal would be an exercise in futility.

p. 7
04

Proof of special damages in employment claims

Holding

Claims for specific commissions and dues are special damages which must be specially pleaded and strictly proved; unproved items cannot be awarded.

Reasoning

The respondent had no documentary evidence for the fleet incentive of Sh.2,810,000, admitted bull bar entitlement was not in his appointment letter, and claimed salary for 20 days on an unproduced payslip inconsistent with his appointment letter. Invoking Kenya Wildlife Services v Rift Valley Agricultural Services Ltd, the Court held that certainty and particularity are required in both pleading and proof of special damages, which the respondent failed to satisfy.

p. 8

Legal principles established

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  • An award of the Industrial Court, like any judgment, must finally determine each of the issues framed between the parties, stating the decision and reasons on each separate issue.
  • The assessment or computation of damages/entitlements is a judicial function that cannot be delegated to a party to the litigation.
  • On a first appeal, the Court of Appeal undertakes a re-evaluation of the recorded evidence and is not bound by the findings of fact of the trial court.

Court orders

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  1. 1.The appeal was allowed
  2. 2.The trial court's (Industrial Court) decision was set aside
  3. 3.Costs of the appeal and of the Industrial Court were awarded to the appellant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority
majority
On appeal from
Industrial Court at Nairobi
H.C.C.C. No. 448(N) of 2009
Jurisdiction invoked
First appeal to the Court of Appeal under the Employment Act No. 11 of 2007 and the Labour Institutions Act No. 12 of 2007 framework (dispute lodged under those Acts); decision below was an award of the Industrial Court.

Relief refused

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Remittal of the cause to the Industrial Court for computation/assessment of the respondent's dues

The trial court failed to determine each issue, so there is no basis for computation; the claims constituted unproved special damages

p. 8

Costs

Costs to the appellant in this Court and in the Industrial Court

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In our view, whether a decision of a court is called an award or a judgment, it must finally determine the issues between parties.
p. 6Nature of an Industrial Court award as a judgment
The assessment of damages is purely a judicial function that cannot be delegated.
p. 7Non-delegation of the computation of damages
A suit cannot be tried in instalments; or parties cannot be given a second bite of the same cherry in a matter that was concluded and partly executed.
p. 7Refusal to remit for computation
In the result, we allow this appeal by setting aside the trial court's decision with costs to the appellant here and in the Industrial Court.
p. 8Final orders and disposition

Issues in the judgment

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minor

The record states the award was in H.C.C.C. No.448(N) of 2009 before the Industrial Court, a cause number designation typically of the High Court, and the memorandum of response date (17th August 2006) is described as a limitation cut-off without an evident statutory basis stated in the judgment.

minor

The judgment refers to the trial court's cut-off date inconsistently as 17th August 2006 in the pleadings and 16th August 2006 in the award.

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, "Simba Colt Motors Limited v James Gitahi Mwangi [2015] KECA 385 (KLR)", Case Analysis (2015). Civil Appeal No. 120 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/385/eng@2015-09-25

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