Kangethe t/a Nakubreeze Travellers Inn v David (Civil Appeal 332 of 2019) [2024] KECA 932 (KLR)
The bottom line
#Kenya's Court of Appeal threw out a waitress's employment award because she never proved her claims, confirming employees must bring evidence, not just allegations.
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 appeal should be dismissed for want of prosecution.
- 2.Whether the respondent is entitled to the awards of underpayment, overtime, annual leave, payment for the month of January 2016 and for 4 days in the month of February 2016.
- 3.The appropriate reliefs to be granted.
Key legal issues
#Whether the appeal should be dismissed for want of prosecution under Order 42 of the Civil Procedure Rules
The appeal could not be dismissed for want of prosecution because the Civil Procedure Rules do not govern the Court of Appeal; the applicable rules are the Court of Appeal Rules, 2022, and such an application cannot be raised by submissions.
The Court reaffirmed that it has its own rules under the Appellate Jurisdiction Act and is in charge of its own diary. Dismissal for want of prosecution is a procedural step requiring a specific application, not submissions, and is not handled by a single judge. The issues raised by the respondent never arose during case management.
Whether the respondent proved the awards of underpayment, overtime, annual leave and unpaid wages
The respondent proved none of the heads of claim; the ELRC awards were unsupported by evidence and were set aside in their entirety.
The employment contract was verbal, which section 8 of the Employment Act permits without imposing onerous terms. The respondent gave no evidence of attempted but declined leave, counsel conceded the 8am-6pm working hours negating overtime, and having absconded without notice she forfeited the equivalent of one month's salary in lieu of notice under section 35 of the Employment Act.
The internal contradiction in the trial court's findings
The trial court's judgment was internally contradictory: it found the termination fair (a finding not appealed), yet awarded the respondent all heads of claim.
The Court held the ELRC could not find the termination fair and then grant reliefs. The trial court extrapolated remuneration from the Regulation of Wages without regard to the agreed contract, which would have created a discriminatory situation vis-à-vis other employees. The respondent's absconding and failure to submit to discipline disentitled her to any claim.
Legal principles established
#- The provisions of the Civil Procedure Act and the Civil Procedure Rules do not apply to proceedings before the Court of Appeal, which is governed by the Court of Appeal Rules made under the Appellate Jurisdiction Act.
- The burden of proof in litigation rests on the person who makes the allegation, notwithstanding any evidentiary obligation placed on an employer under section 74 of the Employment Act.
- The verbal nature of an employment contract, which section 8 of the Employment Act recognises, cannot by itself ground an adverse inference against an employer.
- A party alleging a cause of action must prove it on a balance of probabilities; a court cannot arbitrarily accede to an unsupported claim.
Court orders
#- 1.The appeal is allowed.
- 2.The judgment entered in Nakuru ELRC Cause No. 237 of 2016 on 17th October 2019 be and is hereby set aside.
- 3.No order as to costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Employment and Labour Relations Court, Nakuru
- Nakuru ELRC Cause No. 237 of 2016
- Jurisdiction invoked
- Article 164(3) of the Constitution; section 3(1) of the Appellate Jurisdiction Act
Relief refused
#Respondent's claim for underpayment, overtime, annual leave and pay for January 2016 and 4 days of February 2016
The respondent adduced no evidence to substantiate the claims, the overtime claim was defeated by counsel's concession, and the claims were an afterthought following her absconding from duty.
Dismissal of the appeal for want of prosecution
The Civil Procedure Rules do not apply to the Court of Appeal, which is governed by its own rules; a prayer to dismiss the appeal cannot be raised by way of submissions.
Costs
No order as to costs - neither party to bear the other's costs before the ELRC or before this Court. 'Appreciating that this was an employment matter, we find it unnecessary to burden either side with costs and make no order as to costs before the Employment and Labour Relations Court or before this Court.'
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.
a. The appeal is allowed. b. The judgment entered in Nakuru ELRC Cause No.237 of 2016 on 17th October 2019 be and is hereby set aside. c. No order as to costs.
the applicable rules for this Court are the Court of Appeal Rules made under the Appellate Jurisdiction Act and not the Civil Procedure Rules made under the Civil Procedure Act.
it is a cardinal principle of litigation, as cemented in legal parlance and legislatively engraved, that the burden of proof rests on the person that makes an allegation.
Thus, making an adverse inference as against the appellant cannot merely be on account of the verbal nature of the contract.
The respondent not having issued any such notice, it is reasonable to infer that she should have forfeited an equivalent of one month’s salary in lieu of notice.
It is incumbent upon the party alleging to demonstrate that his grievance/cause of action is genuine and prove the same on a balance of probabilities.
Issues in the judgment
#Internal inconsistency in the judgment's narration of the dates: the respondent was promoted to cashier in February 2016 yet the judgment states she held the position 'until 4th February 2016 when she was orally terminated', and elsewhere the termination is said to have been at the respondent's instance after she absconded, while paragraph 18 refers to 'the ELRC having found that the termination of employment was unfair' contrary to paragraph 4's statement that the ELRC found no merit in the unfair termination claim.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kangethe t/a Nakubreeze Travellers Inn v David (Civil Appeal 332 of 2019) [2024] KECA 932 (KLR)", Case Analysis (2024). Court of Appeal, Nakuru (employment appeal from Nakuru ELRC Cause No. 237 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/932/eng@2024-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.