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Court of AppealPartially AllowedCivil Appeal No. 50 of 2011

Express Connections Limited v Ezekiel Kiarie Kamande [2016] KECA 535 (KLR)

Court of Appeal
27 May 2016
3,795 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal cut a worker's award against his former employer, ruling that unclaimed compensation cannot be awarded, but partners can be sued alone.

What this practically means

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Executive summary

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This appeal arose from an Industrial Court award of Kshs 1,498,499.60 in favour of Ezekiel Kiarie Kamande against Express Connections Limited for unfair termination of employment. The respondent had sued the appellant trading as Double M Commuttertrain, but the Industrial Court's final award was made against the entire Double M Commuttertrain partnership, comprising four natural persons and four corporate partners. The Court of Appeal, hearing the appeal on matters of law only under section 17(2) of the Industrial Court Act, held that the failure to prove employment on the pleaded date of 3rd February 2001 (when neither the appellant nor the partnership existed) did not collapse the claim, since evidence established employment by Commuttertrain partnership from 2005 to 2009. The Court applied sections 14, 15 and 16 of the Partnership Act to hold that a partner may be sued individually for the firm's liabilities without joining co-partners, so the suit against the appellant was properly constituted. However, the Court faulted the Industrial Court for making its award against all partners when the respondent had elected to pursue only the appellant's individual liability. It further held that although notice pay was properly pleaded and awarded, the six months' compensation for unfair termination was never pleaded or claimed and was therefore deemed waived; an unpleaded remedy cannot be granted. The Court set aside the award against the partnership and substituted an award of Kshs 1,381,499.60 against the appellant alone, and ordered each party to bear their own costs in the appeal and the lower court. The appeal was therefore partially allowed.

Key legal issues

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01

Whether the claim failed because the pleaded employer (the appellant) did not exist at the pleaded date of employment

Holding

No - the court was entitled to inquire whether an employment relationship existed for the rest of the claimed period, which was proved against Commuttertrain partnership from 2005 to 2009

Reasoning

An employment relationship is contractual and may continue indefinitely; proof of employment on the precise pleaded date is not essential where evidence establishes the relationship over the balance of the period. Evidence included an employment identity card, worksheets, bank statements and testimony of the partnership's HR manager and a partner. The appellant's own defence alternatively pleaded employment by the proprietors of Commuttertrain.

p. 3
02

Whether the appellant, a partner in Commuttertrain partnership, was properly sued alone for the partnership's liability

Holding

Yes - under sections 14, 15 and 16 of the Partnership Act a partner is jointly and severally liable and may be sued individually for the firm's liabilities

Reasoning

The description of the appellant as trading as 'Double M Commuttertrain' was the proper firm name. The employment and its termination occurred in the ordinary course of the firm's business. Non-joinder of the other partners did not defeat the suit; the claimant could elect to pursue the individual liability of one partner rather than the joint liability of all.

p. 5
03

Whether the Industrial Court could award notice pay and compensation for unfair termination not specifically claimed

Holding

Notice pay was properly awarded as it was pleaded and reiterated in evidence; the award of 6 months' compensation could not stand as it was never pleaded or claimed

Reasoning

The memorandum of claim expressly sought one month's salary in lieu of notice, which was reiterated in evidence despite an inadvertent arithmetic omission in the final prayer. Compensation under section 49 of the Employment Act must be specifically sought, since a party sued is entitled to know the claim against him from the pleadings. Unpleaded remedies are deemed waived.

p. 6
04

Whether the respondent's dismissal was unfair

Holding

Yes - the appellant failed to prove that the respondent absconded, no proper disciplinary hearing was held, and no notice pay was given

Reasoning

Under section 43 of the Employment Act the burden of proving the reason for termination rests on the employer. The appellant's witnesses failed to prove abscondment. There was no proper disciplinary hearing before termination and no salary in lieu of notice was paid, so the trial court's finding of unfair dismissal was proper.

p. 5
05

Whether the Industrial Court erred in making its award against all partners rather than the appellant alone

Holding

Yes - since the respondent elected to pursue only the appellant's individual liability, the award against the unsued partners was wrong

Reasoning

Although all partners were jointly and severally liable, the respondent chose to pursue only the appellant. The Industrial Court therefore erred in making a final award against 'Double M Commuttertrain partnership comprising the aforestated 4 natural and 4 corporate persons.' The award was varied to run against the appellant alone, reducing it by the unpleaded compensation element.

p. 5

Legal principles established

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  • A partner in a partnership may be sued individually for the firm's liabilities arising in the ordinary course of the firm's business, without joining all co-partners
  • Where a party fails to plead and claim an essential part of his claim, that part is deemed waived and the court cannot grant it
  • An employment relationship is not static or dependent on a one-off event; a failure to prove employment on the specific pleaded date does not collapse a claim covering a wider period
  • On appeals limited to matters of law from the Employment and Labour Relations Court, the Court of Appeal may not question established findings of fact of the trial court unless the propriety of the finding becomes a legal issue
  • Under section 43 of the Employment Act, the burden lies on the employer to prove the reason for termination of employment

Court orders

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  1. 1.Set aside the award of the Industrial Court under paragraph (b) that the claimant be paid by Double M Commuttertrain partnership the total sum of Kshs 1,498,499.60
  2. 2.Substituted an award that the claimant be paid by the appellant t/a Double M Commuttertrain the total sum of Kshs 1,381,499.60 being payments for salary in lieu of notice, days worked, overtime and leave days
  3. 3.Set aside the award of 6 months' compensation for unfair termination
  4. 4.Each party to meet their own costs in the appeal and in the lower court
On appeal from
Industrial Court of Kenya at Nairobi (now Employment and Labour Relations Court)
Cause No. 554 N of 2009
Jurisdiction invoked
Section 17(2) of the Industrial Court Act (right of appeal limited to matters of law)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Express Connections Limited v Ezekiel Kiarie Kamande [2016] KECA 535 (KLR)", Case Analysis (2016). Civil Appeal No. 50 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/535/eng@2016-05-27

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