Makori v Kisii County Government (Civil Appeal 9 of 2020) [2025] KECA 1904 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a claimant who never testifies loses, because filed documents and statements alone cannot prove a case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether, on the material that was available to the trial court, there was any error in the determination that the appellant had failed to prove her case on the balance of probabilities
Key legal issues
#Whether the appellant proved her employment claim on a balance of probabilities without testifying
No - the burden of proof under sections 107(1) and 109 of the Evidence Act could only be discharged by the appellant testifying, since the respondent filed a defence specifically denying the claim and there was no admission of her averments
The appellant's claim was specifically denied by the respondent's defence. Her pleadings, documents and witness statements were not on oath and none of her averments was admitted. Under section 107(1) of the Evidence Act, the party asserting facts must prove them; the appellant therefore had to testify to prove her claim, and her election not to do so was fatal.
Whether the trial court erred in dismissing the claim
No - the dismissal was correct because no evidence was called to prove the claim
The Court of Appeal, exercising its Rule 31(1)(a) jurisdiction to re-appraise evidence, agreed with the learned Judge that pleadings and unsworn statements could not found a decision in the absence of admission, and that the claimant elected not to testify at her own peril under the consent dispensing with oral evidence.
Legal principles established
#- Pleadings, unsworn documents and witness statements are not evidence; a party who asserts the affirmative of an issue must prove it by testimony unless the averments are admitted
- The legal burden of proof lies on the party who invokes the aid of the law and substantially asserts the affirmative of the issue, under section 107(1) of the Evidence Act
- On first appeal, the Court of Appeal re-appraises the evidence tendered before the trial court and draws its own conclusions, bearing in mind it did not see or hear the witnesses
Court orders
#- 1.The appeal is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court at Kisumu
- Memorandum of Claim dated 9th September 2016
- Jurisdiction invoked
- Rule 31(1)(a) of the Court of Appeal Rules, 2022 (first appellate re-appraisal of evidence)
Relief refused
#Appellant's claim that she remained an employee of the respondent and was entitled to withheld salaries, interest and costs
The appellant failed to testify and adduce evidence to prove her unadmitted averments; the trial court's dismissal was correct
Costs
The appeal is dismissed with costs to the respondent (the trial court had ordered each party to bear their own costs of the suit).
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.
The jurisdiction of this Court under Rule 31(1)(a) of the Court of Appeal Rules, 2022 is to re-appraise the evidence that was tendered before the trial court and draw our own conclusions thereon
Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that these facts exist.
The pleadings in a suit are not normally evidence. They may become evidence if they are expressly or impliedly admitted as then the admission itself is evidence.
Consequently, we find no merit in the appeal, which we dismiss with costs.
Issues in the judgment
#The Court states the trial court dismissed the claim 'with costs', but the judgment quoted from the trial court shows each party was to bear their own costs; this creates an internal discrepancy in describing the decision below
The judgment records counsel stating they relied on written submissions, then immediately states none had been filed, an unresolved contradiction in the record
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makori v Kisii County Government (Civil Appeal 9 of 2020) [2025] KECA 1904 (KLR)", Case Analysis (2025). Appeal from ELRC Cause, Kisumu (Memorandum of Claim dated 9th September 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1904/eng@2025-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.