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ELRCDismissedNot stated in the judgment (memorandum of appeal dated March 1, 2019)

Longterm View Capital Limited v Ayuma (Appeal 5 of 2019) [2023] KEELRC 1217 (KLR)

Employment and Labour Relations Court
19 May 2023
1,739 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan employer lost its appeal against a worker's injury award because it never produced its claimed settlement agreement or raised jurisdiction objections at trial.

What this practically means

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Executive summary

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This was an appeal to the Employment and Labour Relations Court at Nairobi, decided by Abuodha J on May 19, 2023, against the ruling of Honourable P. Muholi (SRM) of February 1, 2019 in Chief Magistrate's Civil Case No 7613 of 2015, dismissing the appellant employer's application of April 12, 2018 seeking stay of execution of an ex parte judgment entered in a work injury claim. The appellant advanced seventeen grounds, principally that the magistrate's court lacked jurisdiction because the matter was a Work Injury Benefits Act claim over which only the Director WIBA had original competence (relying on Law Society of Kenya v Attorney General and the Owners of the Motor Vessel Lilian 'S'), and that the parties had concluded a settlement under which the respondent received Kshs 203,435/-, so any further award would amount to unjust enrichment. The respondent countered that the jurisdictional issue was being raised for the first time on appeal, contrary to the settled position that cases are decided on pleadings, and that the alleged settlement was illegal, unenforceable and unproved. The court, applying Selle v Associated Motor Boat Company and section 109 of the Evidence Act, held that the appellant bore the evidential burden of producing the settlement agreement before the trial court and, having failed to do so and never having filed a defence raising jurisdiction, could not fault the magistrate. The appeal was found unmerited and dismissed with costs.

Questions the Court framed

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

  1. 1.Whether the trial magistrate's court lacked jurisdiction to hear and determine the work injury benefits claim which ought first to have been handled by the Director WIBA
  2. 2.Whether the settlement agreement under which the respondent allegedly received Kshs 203,435/- barred the claim
  3. 3.Whether the magistrate erred in dismissing the appellant's application dated April 12, 2018 for stay of execution / setting aside the default judgment

Key legal issues

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01

Jurisdiction of the magistrates' court over work injury benefits claims

Holding

The court did not uphold the appellant's jurisdictional objection because it was raised for the first time on appeal and not pleaded before the trial court

Reasoning

The respondent argued, and the court accepted, that cases and appeals are decided on pleadings. The appellant never raised the WIBA jurisdiction issue in its motion of April 17, 2018, in the supporting or further affidavits, or in submissions before the magistrate. Raising it for the first time on appeal was an afterthought, so the trial court could not be faulted for entering default judgment.

p. 3
02

Evidential burden of proving the settlement agreement

Holding

The appellant failed to discharge the burden under section 109 of the Evidence Act of proving the alleged settlement agreement

Reasoning

Section 109 of the Evidence Act casts an evidential burden on any party alleging the existence of a fact. The appellant asserted a settlement under which the respondent received Kshs 203,435/- but never produced the agreement before the trial court, nor filed a defence on merit raising it. Having failed to prove it, the appellant could not fault the magistrate, and the claim of double compensation/unjust enrichment failed.

p. 4
03

Duty of a first appellate court

Holding

The court, as a first appellate court, reassessed the evidence and conclusions of the trial court without being bound by its findings

Reasoning

Relying on Selle v Associated Motor Boat Company Limited, the court restated that an appeal by way of retrial requires the appellate court to reconsider and evaluate the evidence itself and draw its own conclusions, while making allowance for the fact that it neither saw nor heard the witnesses. The court applied this standard to reanalyse the evidence before the magistrate.

p. 4

Legal principles established

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  • A party who asserts the existence of a fact, such as a settlement agreement, bears the evidential burden of producing proof of it; failure to do so before the trial court cannot be cured on appeal

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The appellant to pay the costs of the appeal

The bench

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

majority

Wrote the judgment

On appeal from
Chief Magistrate's Court
Civil Case No 7613 of 2015
Jurisdiction invoked
Appellate jurisdiction of the Employment and Labour Relations Court over appeals from the Magistrates' Courts in employment and labour disputes (section 9(b) of the Magistrates' Courts Act 2015 discussed)

Relief refused

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Setting aside of the judgment of August 23, 2017/2018 and the ruling of February 1, 2019

The appellant failed to discharge its evidential burden of producing the alleged settlement agreement before the trial court and never raised jurisdiction before the magistrate

p. 4

Dismissal of Civil Case No 7613 of 2015 for want of jurisdiction

The jurisdictional objection was raised for the first time on appeal and the appellant had the burden to prove the facts it asserted

p. 4

Allowing the notice of motion dated April 12, 2018 (alternative prayer)

The appeal having failed, the alternative prayer fell away with it

Costs

The appeal is dismissed with costs (costs of the appeal awarded against the appellant)

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.

To this extent the court finds and holds that the appeal is unmerited and is hereby dismissed with costs
p. 4Disposition - appeal dismissed with costs
It is so ordered
p. 4Final orders
the appellant had the evidentiary burden to produce the same before the trial court. However, having failed to do so, it cannot plead that the learned magistrate erred when it in fact did not file a defence on merit let alone raise the issue before the magistrate.
p. 4Evidential burden of proving settlement agreement
Jurisdiction is everything. Without it, a court has no power to make one more step.
p. 3Jurisdiction principle cited by the appellant (Owners of the Motor Vessel Lilian 'S')
this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses
p. 4Duty of a first appellate court (Selle v Associated Motor Boat Co)

Issues in the judgment

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minor

Internal inconsistency in dates: the memorandum of appeal is dated March 1, 2019 but pleads as a ground of appeal the dismissal of an application 'dated April 12, 2018'; the impugned ruling is variously dated February 1, 2018 and February 1, 2019, and the ex parte judgment is dated August 23, 2017 in one place and August 23, 2018 in the prayers

minor

Paragraph numbering is duplicated - the paragraphs under 'Determination' are all numbered 14

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, "Longterm View Capital Limited v Ayuma (Appeal 5 of 2019) [2023] KEELRC 1217 (KLR)", Case Analysis (2023). Not stated in the judgment (memorandum of appeal dated March 1, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1217/eng@2023-05-19

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