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Court of AppealPartially AllowedCourt of Appeal, Nakuru (employment appeal from Nakuru ELRC Cause No. 237 of 2016)· [2024] KECA 932 (KLR)

Joseph Ngige Kangethe T/A Nakubreeze Travellers Inn v Dorcas Ndanu David

Court of Appeal
26 July 2024
2,285 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 waitress's employment award because she never proved her claims, confirming employees must bring evidence, not just allegations.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal from a judgment of the Employment and Labour Relations Court at Nakuru (Cause No. 237 of 2016, delivered 17 October 2019), which had awarded a former waitress and cashier underpayment, overtime, leave pay and wages for January 2016 and four days of February 2016, while rejecting her claim for unfair termination. The employer appealed. The Court framed three issues: whether the appeal should be dismissed for want of prosecution, whether the monetary awards were justified, and the appropriate reliefs. On the first issue, the Court held that the Civil Procedure Rules invoked by the respondent do not apply to the Court of Appeal, which is governed by the Court of Appeal Rules made under the Appellate Jurisdiction Act, and that a prayer to dismiss an appeal cannot be raised through submissions. On the merits, the Court found the respondent had produced no evidence to substantiate any head of claim; counsel conceded the working hours defeating the overtime claim; and, having absconded from duty after CCTV footage showed her receiving money without receipting it and failing to submit to disciplinary process, she forfeited a month's salary in lieu of notice under section 35 of the Employment Act. The Court held the trial court's judgment was internally contradictory, finding the termination fair yet awarding reliefs, and set the ELRC judgment aside in its entirety. The appeal was allowed with no order as to costs, each party bearing its own costs before both courts.

Key legal issues

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01

Whether the appeal should be dismissed for want of prosecution under Order 42 of the Civil Procedure Rules

Holding

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.

Reasoning

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.

p. 2
02

Whether the respondent proved the awards of underpayment, overtime, annual leave and unpaid wages

Holding

The respondent proved none of the heads of claim; the ELRC awards were unsupported by evidence and were set aside in their entirety.

Reasoning

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.

p. 4
03

The internal contradiction in the trial court's findings

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The appeal is allowed.
  2. 2.The judgment entered in Nakuru ELRC Cause No. 237 of 2016 on 17th October 2019 be and is hereby set aside.
  3. 3.No order as to costs.
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

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, "Joseph Ngige Kangethe T/A Nakubreeze Travellers Inn v Dorcas Ndanu David", 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.