Musau & another v Treadsetters Tyres Limited (Appeal E155 of 2021) [2024] KEELRC 87 (KLR)
The bottom line
#Kenya's Employment Court threw out a flawed judgment and ordered a retrial because the trial record was too unclear for any appeal to be decided fairly.
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 erred in finding that termination was lawful
- 2.Whether the Trial Court erred by failing to consider the Appellants' submissions and evidence
- 3.Whether the Trial Court erred in failing to award housing allowance to the Appellants
- 4.Whether the Trial Court erred in failing to award unpaid salaries
- 5.Whether the Trial Court erred in failing to find that the Respondent bore a statutory duty to satisfy procedural fairness and grounds of termination
- 6.Whether the defective proceedings and judgment of the Trial Court warrant a retrial
Key legal issues
#Adequacy of the trial record and judgment
The record was jumbled, sketchy and indicative of a mistrial; no appellate court could make a proper judgment based on it
The evidence did not disclose which Appellant testified, whether witnesses were identified, cross-examined or documents exhibited; the judgment was not worded in clear language and failed to address all prayers, including statutory benefits. The appellate process was hampered, warranting a retrial.
Failure of the Trial Court to address all prayers
The Trial Court erred in dismissing the Claim wholesale without explaining why prayers other than unfair termination remedies failed
The Trial Court said nothing about house allowance, annual leave, salaries and allowances, and even dismissed the prayer for a Certificate of Service, a statutory right under Section 51 of the Employment Act, despite finding termination lawful. Finding termination fair did not preclude consideration of other benefits.
Legal principles established
#- Proceedings and judgments of a trial court must be recorded in fairly clear language, identifying witnesses, evidence and issues, since the appellate jurisdiction relies on the record
- A trial judgment must give a case summary, identify the issues and rule on all issues raised by the parties, anchoring determination on recorded evidence
- Glaring defects in proceedings and judgment warrant declaration of a mistrial and justify a retrial
Court orders
#- 1.Proceedings and Judgment of the Trial Court in Chief Magistrate's Court at Nairobi, CMEL No 1230 of 2019 are set aside
- 2.There shall be a retrial of the Claim before any another Hon. Magistrate, other than Hon. Principal Magistrate D.W. Kivuti, designated by the relevant Chief Magistrate, Nairobi
- 3.No order on the costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Nairobi
- CMEL No 1230 of 2019
- Jurisdiction invoked
- Appellate jurisdiction of the Employment and Labour Relations Court over appeals from the Trial Court (specific provision not stated in the judgment)
Relief refused
#Allowing the Appeal and setting aside the Judgment with costs as sought
The Court held that the prayers sought, without a prayer for retrial, would not resolve the dispute; the parties need to be reheard
Costs
No order on the costs
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 record of the trial is therefore jumbled, indicative of a mistrial, and no Court on Appeal can make a proper Judgment based on this record.
Proceedings and Judgments of a Trial Court must be recorded in fairly clear language, bearing always in mind that Parties may wish to pursue appellate proceedings based on the record
Finding that termination was fair and lawful, did not preclude consideration of other benefits claimed by the Appellants.
Proceedings and Judgment of the Trial Court in Chief Magistrate's Court at Nairobi, CMEL No 1230 of 2019 are set aside.
There shall be a retrial of the Claim before any another Hon. Magistrate, other than Hon. Principal Magistrate D.W. Kivuti, designated by the relevant Chief Magistrate, Nairobi.
Issues in the judgment
#Appellants and Respondent are not named anywhere in the judgment; the case number of the appeal itself is not stated
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musau & another v Treadsetters Tyres Limited (Appeal E155 of 2021) [2024] KEELRC 87 (KLR)", Case Analysis (2024). Not stated in judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/87/eng@2024-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.