Kedar Builders Limited v Sammy (Appeal E043 of 2021) [2022] KEELRC 4150 (KLR)
The bottom line
#A Kenyan employment appeal succeeded because the trial judge overlooked the employer's written submissions, so the case goes back for a fresh judgment—no retrial needed.
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 trial court failed to appreciate the appellant's case as presented in the pleadings and evidence (ground 1)
- 2.Whether the trial court failed to consider the appellant's closing submissions (ground 2)
- 3.Whether the trial court erred in finding that termination was not based on valid reason and fair procedure (ground 3)
- 4.Whether the trial court erred in finding the respondent entitled to the reliefs granted (ground 4)
Key legal issues
#Whether omission of a party's closing submissions vitiates the trial court's judgment
Ground 2 of the appeal was well-founded: the trial court stated the appellant's submissions had not been filed, yet the record showed they were filed and confirmed on February 23, 2021. The omission cast doubt on the legal findings and warranted intervention.
The record showed both parties confirmed filing and exchanging submissions on February 23, 2021, and the respondent's submissions were date-stamped February 22, 2021, so the trial court must have been seized of the appellant's submissions. The trial court nonetheless stated the appellant's submissions were not considered. This omission placed the legal findings on reasons and fairness of procedure in doubt, since submissions contain case law and a party's interpretation of the applicable law. The judgment could be revisited without a fresh trial, as pleadings and evidence had been considered.
What remedy follows where closing submissions were omitted but pleadings and evidence were considered
The appropriate remedy is for the trial court to revisit its judgment and take the submissions into account, delivering a fresh judgment; there is no need for a fresh hearing or dismissal of the claim.
The omission did not relate to pleadings or evidence, so a fresh trial was unnecessary. Dismissing the claim would be a travesty. The court could not say the outcome would have been the same without the omission; it was for the trial court to assess the pleadings and evidence against the closing submissions filed by both parties. The appeal was allowed on ground 2, which affected grounds 3 and 4.
Legal principles established
#- Closing submissions are integral to the concept of fair hearing, and failure to consider submissions shown to be on record adversely affects the court's responsibility to administer justice fairly.
- Where only the closing submissions were omitted, the judgment can be revisited without subjecting the parties to another full trial.
Court orders
#- 1.The appeal is allowed on ground 2
- 2.The trial court shall consider the submissions filed by the appellant, and deliver a fresh judgment to the parties, on a date to be notified to the parties
- 3.There shall be no fresh hearing before the trial court
- 4.No order as to costs on appeal
- 5.Costs on trial to be determined by the trial court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Trial court (not specified by name in the judgment)
- Jurisdiction invoked
- Appellate jurisdiction over an appeal from the trial court (memorandum of appeal on 4 grounds); specific provision not stated
Relief refused
#Setting aside the trial court judgment and dismissal of the claim with costs to the appellant
The omission was limited to the closing submissions; the pleadings and evidence were considered, so a fresh trial or dismissal was unwarranted.
Costs
No order as to costs on appeal; costs on trial to be determined by the trial 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.
Closing submissions are an important aspect in the proceedings, where parties get to assisting the court, with their appreciation of the pleadings, evidence and the law. They are integral to the concept of fair hearing.
failure to consider submissions which have been shown to be on record, has an adverse efiect on the court’s responsibility to administer justice fairly
The judgment can be revisited, without subjecting the parties to another full trial.
a. The appeal is allowed on ground 2. b. The trial court shall consider the submissions filed by the appellant, and deliver a fresh judgment to the parties, on a date to be notified to the parties.
Issues in the judgment
#Recurring typographical errors ('afiect', 'efiect', 'fiowing') and a dropped opening letter in 'he judgment can be revisited' in paragraph 13.
The case number, citation and identity/names of the parties are not stated in the judgment text provided.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kedar Builders Limited v Sammy (Appeal E043 of 2021) [2022] KEELRC 4150 (KLR)", Case Analysis (2022). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4150/eng@2022-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.