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Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal 563 of 2019

Manga v Prime Bank Ltd

Court of Appeal
25 September 2026
3,579 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed employers can sue employees for fraud in the Employment Court, and a former bank officer must repay Kshs.4.6 million.

What this practically means

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Executive summary

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The appellant, a former Senior Officer in the respondent bank's Human Resource Department, appealed against the judgment of the Employment and Labour Relations Court (Radido, J.) which, after his claim had been dismissed for non-attendance, entered judgment for the bank on its counterclaim for Kshs.4,611,490 allegedly lost through a fraudulent reimbursement and disbursement scheme he conducted with a departmental clerk. Before the Court of Appeal, the appellant raised three principal grounds: that the ELRC lacked jurisdiction over a counterclaim founded on fraud and theft; that the counterclaim was statute-barred under section 4(2) of the Limitation of Actions Act and section 89 of the Employment Act; and that the fraud was not proved to the requisite heightened standard, the document examiner's report being unproved hearsay and no evidence apportioning individual liability. The Court dismissed the appeal. Applying Owners of the Motor Vessel 'Lillian S', it held that jurisdiction is determined from the pleadings and the nature of the dispute; a claim framed in fraud does not oust the ELRC's jurisdiction where the dispute is substantially rooted in employment. The limitation defence failed because it was not pleaded or canvassed below. On the merits, the Court reaffirmed that fraud must be strictly proved to a standard above balance of probabilities, found the documentary evidence, audit report and corroborated document examiner's report sufficient, and held that uncontroverted evidence from an undefended counterclaim may found a finding of liability. The judgment of the superior court on the counterclaim was upheld, with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Employment and Labour Relations Court had jurisdiction to entertain the respondent's counterclaim
  2. 2.Whether the counterclaim was statute-barred
  3. 3.Whether the allegations of fraud were proved to the required standard
  4. 4.Whether the superior court properly evaluated the evidence and applied the correct legal principles

Key legal issues

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01

Jurisdiction of the ELRC over a counterclaim framed in fraud

Holding

The ELRC properly assumed jurisdiction because the counterclaim arose directly from the employment relationship and alleged losses occasioned in the course of the appellant's duties.

Reasoning

Applying Owners of the Motor Vessel 'Lillian S', jurisdiction is determined from the pleadings and the nature of the dispute. The counterclaim was anchored on alleged breach of employment obligations and misuse of office during employment, causing financial loss to the employer. Fraudulent characterisation of the claim does not, without more, remove it from the ELRC's mandate under Article 162(2)(a) and section 12 of the ELRC Act.

p. 10
02

Limitation defence raised for the first time on appeal

Holding

The limitation defence failed because it was not pleaded or canvassed before the superior court and cannot be raised at this stage to impeach the judgment.

Reasoning

Limitation is a substantive defence that must be specifically pleaded and strictly proved. Section 26 of the Limitation of Actions Act may postpone time where concealment is proved, but that too must be specifically pleaded and established. No evidential basis was laid before the superior court to sustain the defence.

p. 13
03

Standard of proof for fraud and sufficiency of evidence

Holding

The respondent discharged the burden of proving fraud to the heightened standard through documentary evidence, the audit report, and the document examiner's report corroborated by other evidence.

Reasoning

Fraud must be strictly proved to a standard higher than balance of probabilities. The Head of Internal Audit testified to altered and inflated vouchers, fictitious claims and irregular disbursements, supported by documentary exhibits. The document examiner's report, though opinion evidence, was admissible and corroborated per Mutonyi v Republic. The superior court evaluated the evidence with due caution.

p. 14
04

Effect of failure to file a defence to the counterclaim

Holding

The appellant's failure to defend or attend left the respondent's evidence uncontroverted, which the superior court was entitled to evaluate and act upon if credible and sufficient.

Reasoning

Relying on Postal Corporation of Kenya v Associated Auctioneers, uncontroverted evidence, if credible and sufficient, may properly form the basis of a finding. Absence of a defence does not entitle the claimant to automatic judgment, but the evidence remains subject to evaluation against the requisite standard of proof.

p. 14
05

Joint liability for the loss

Holding

Civil liability for fraud may be joint where participation in a common scheme is established; the superior court was entitled to find the loss was jointly occasioned.

Reasoning

The evidence demonstrated a coordinated scheme involving manipulation of payment and verification processes with more than one actor. On that evidence the superior court was entitled to find the loss of Kshs.4,611,490 was jointly occasioned through the scheme.

p. 15

Legal principles established

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  • The mere framing of a claim in terms of fraud does not oust the jurisdiction of the ELRC where the dispute is substantially rooted in employment; jurisdiction is determined from the pleadings and the nature of the dispute.
  • Allegations of fraud must be strictly proved to a standard higher than a balance of probabilities, though not beyond reasonable doubt.
  • Failure to defend a claim does not entitle a claimant to automatic judgment; uncontroverted evidence remains subject to evaluation on its own merit and, if credible and sufficient, may found a finding.
  • Limitation is a substantive defence which must be specifically pleaded and strictly proved, and cannot be raised for the first time on appeal.
  • On a first appeal, the appellate court re-evaluates the evidence and draws its own conclusions, but will not interfere with findings of fact unless based on no evidence, misapprehension of the evidence, or wrong principles.

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent
  2. 2.The judgment of the superior court on the counterclaim is upheld

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
Employment & Labour Relations Court at Nairobi
Jurisdiction invoked
Article 163(4) of the Constitution / first appeal to the Court of Appeal against the judgment of the Employment & Labour Relations Court

Relief refused

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Setting aside of the judgment and decree of the superior court on the counterclaim

The appellant failed to demonstrate any error of law or fact; jurisdiction was properly assumed, limitation not established, and fraud proved to the required standard

Costs

The appeal is dismissed with costs to the respondent

Quotable passages

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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 mere framing of the claim in terms of fraud does not, without more, oust the jurisdiction of the ELRC where the dispute is substantially rooted in employment.
p. 12Jurisdiction of the ELRC over fraud-based employment counterclaims
It is trite that limitation is a substantive defence which must be specifically pleaded and strictly proved.
p. 13Limitation defences must be pleaded
allegations of fraud must be strictly proved, though not beyond reasonable doubt, but to a standard higher than a balance of probabilities
p. 13Standard of proof in fraud
failure to defend a claim does not entitle a party to automatic judgment, but it leaves the respondent's evidence uncontroverted and subject to evaluation on its own merit
p. 14Effect of undefended claims
The appeal is accordingly devoid of merit and is dismissed with costs to the respondent, and the judgment of the superior court on the counterclaim is hereby upheld.
p. 16Final orders and disposition

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, "Manga v Prime Bank Ltd", Case Analysis (2026). Civil Appeal 563 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1785/eng@2026-09-25

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