AVC Management Company Ltd t/a Mnarani Club v Mwangero (Civil Appeal E016 of 2024) [2026] KECA 1382 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that an employer's stamped bank transfer documents proved terminal dues were paid, and a former employee needed a bank statement to prove otherwise.
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 learned Judge erred in finding that there was no proof of payment of the computed terminal dues, and in proceeding to award the same with costs to the respondent
Key legal issues
#Scope of the Court of Appeal's jurisdiction on a second appeal
The Court's mandate on a second appeal is limited to points of law under section 72(1) of the Civil Procedure Act; it must accept findings of fact of the lower courts and not treat findings of fact as holdings of law.
The Court invoked section 72(1) of the Civil Procedure Act and its own precedents (Stanley N. Muriithi, Kenya Breweries) to frame its mandate. Relying on Stephen Muriungi and Martin v Glywed Distributors, it reaffirmed that where appeal lies on law only, the court should resist re-evaluating facts unless no reasonable tribunal could have reached the conclusion below.
Whether the ELRC erred in finding there was no proof of payment of terminal dues
Yes. The documentary evidence (a bank instruction letter and RTGS funds transfer form dated 5th November 2020, stamped by KCB and the union) demonstrated on a balance of probabilities that the appellant remitted the dues; the evidential burden then shifted to the respondent, who failed to discharge it by producing his bank statement.
The Court found the appellant had produced funds transfer documents stamped by KCB, Imarika Sacco and the union, marked 'Staff Final Dues (Phase1)'. The respondent merely gave oral testimony of non-receipt, did not controvert the payment evidence, and never produced his account statement. The learned Judge therefore misdirected herself in re-evaluating the evidence, and the Court reinstated the trial court's dismissal.
Failure of the first appellate court to properly analyse and re-evaluate the evidence
The ELRC failed to properly analyse, reassess and reconsider the evidence with a view to arriving at its own independent conclusion, justifying intervention despite the principle against disturbing concurrent findings of fact.
Drawing on Zingo Investments, John Onyango v Samson Luwayi and Abdul v Rubia, the Court noted it will not disturb concurrent findings unless both courts misapprehended the evidence. Before intervening, it must be satisfied that the first appellate court failed to properly analyse the evidence. The Court held the ELRC failed to do so, which justified setting aside its judgment.
Legal principles established
#- On a second appeal, the Court of Appeal is confined to matters of law and will not interfere with findings of fact unless the two courts below considered matters they should not have considered or failed to consider matters they should have considered, or the decision is perverse.
- Once a party adduces documentary evidence of payment on a balance of probabilities, the evidential burden shifts to the opposing party to prove non-payment, and mere oral denial without concrete evidence such as a bank statement will not discharge that burden.
- The evidential burden may shift in the course of trial depending on the evidence adduced; as the weight of evidence varies, so will the evidential burden shift to the party who would fail without further evidence.
Court orders
#- 1.The appeal is allowed with costs to the appellant
- 2.The Judgment and Decree of the Employment and Labour Relations Court at Malindi delivered on 23rd May 2024 is set aside
- 3.The Judgment and orders of the trial magistrates' court of 17th March 2023 are reinstated
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court at Malindi
- ELRC Appeal No. E007 of 2023
- Jurisdiction invoked
- Section 72(1) of the Civil Procedure Act (second appeal on matters of law)
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.
In our considered view, the documentary evidence adduced by the appellant demonstrated on a balance of probabilities that it had indeed remitted the respondent’s final dues into his Imarika Sacco account. The burden therefore shifted to the respondent to demonstrate that the said payments were not remitted.
In our considered view, the respondent’s oral testimony was not suficient to displace the documentary evidence of payment tabled by the appellant.
Accordingly, it is hereby allowed with costs to the appellant. Consequently, the Judgment and Decree of the Employment and Labour Relations Court at Malindi (A. K. Nzei, J.) delivered on 23rd May 2024 is hereby set aside, and the Judgment and orders of the trial magistrates’ court of 17th March 2023 are hereby reinstated.
Issues in the judgment
#The judgment is dated 10th July 2026, which appears anomalous relative to the procedural chronology (submissions filed March 2025).
Paragraph numbering in the judgment is irregular: two passages are both numbered 17, and one is numbered 31`.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "AVC Management Company Ltd t/a Mnarani Club v Mwangero (Civil Appeal E016 of 2024) [2026] KECA 1382 (KLR)", Case Analysis (2026). Second appeal from ELRC Appeal No. E007 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1382/eng@2026-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.