Gathuthi Tea Factory v Kamunya (Employment and Labour Relations Appeal E023 of 2024) [2025] KEELRC 1367 (KLR)
The bottom line
#Kenya's Employment Court in Nyeri threw out a seasonal worker's damages award because the claims for leave, overtime and NSSF money were never properly pleaded or proved.
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 award of damages granted by the trial court should be disturbed
Key legal issues
#Whether the trial court's award of pro-rata leave, overtime pay and unremitted NSSF deductions was supported by pleadings and evidence
The awards were perverse: the particulars were not pleaded and there was evidence (payslips, contract schedule and NSSF statement) that leave and overtime were paid and NSSF remitted; the awards were set aside.
The trial court awarded 59/69 leave days and overtime without those particulars being pleaded and contrary to payslips showing payment. For NSSF, the respondent never pleaded or proved the 64 months of non-remittance; the burden of proof was wrongly shifted to the employer. Findings not flowing from pleadings and evidence are perverse and amenable to interference on first appeal.
Whether the trial court wrongly shifted the burden of proof to the employer on overtime and NSSF claims
Yes - the trial court awarded these claims only because the employer had not proved payment, reversing the burden of proof.
The trial court reasoned that since no evidence of payment was tendered by the employer, the claims were awarded as prayed. The court held this contrary to the law of evidence: the party alleging overtime work or non-remittance of deductions must lead prima facie evidence before any burden shifts to the employer.
The scope of a first appeal on findings of fact and quantum
The first appellate court may re-evaluate the evidence and draw its own conclusions but will interfere only where findings are unsupported by evidence or perverse.
Applying Selle v Associated Motor Boat Co Ltd and Peters v Sunday Post Ltd, the court reiterated that an appellate court is not bound by trial findings of fact but must exercise the jurisdiction with caution, given it neither saw nor heard the witnesses.
Legal principles established
#- A first appellate court is not bound by the trial court's findings of fact and may re-evaluate the evidence, but must make due allowance for not having seen or heard the witnesses.
- A finding of fact not supported by the pleadings and evidence is perverse and may be interfered with on appeal.
- The burden of proving overtime work and non-payment lies on the employee; it does not shift to the employer absent prima facie evidence.
Court orders
#- 1.Appeal allowed
- 2.Trial court's judgment set aside and substituted with an order dismissing the respondent's statement of claim
- 3.Appellant awarded costs of the appeal and the court below plus interest at court rates
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (ELRC subordinate court)
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court's decision (Memorandum of Appeal dated 18th September 2024)
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.
Consequently, I allow the appeal, set aside the trial court's judgment and substitute it with an order dismissing the respondent's statement of claim. The appellant is also awarded costs of the appeal and the court below plus interest at court rates.
Without such prima facie evidence the burden of proof cannot shift to the employer.
A finding of fact by the trial court that does not fiow from the pleadings and evidence is perverse and may occasion miscarriage of justice, and is therefore amenable to interference by the appellate court.
Issues in the judgment
#The judgment inconsistently states the pro-rata leave award as Kshs.79,051 (grounds of appeal) and Kshs.76,051 (determination), and the NSSF award as Kshs.29,200 in the pleadings but Kshs.29,600 in the trial court's quoted ruling and in the determination.
The prayer for overtime in the pleadings refers to 69 hours at Kshs.220 per hour totalling Kshs.15,180, but the trial court's quoted ruling refers to '59 overtime hours' and the appeal grounds refer to a 59-day leave award, creating ambiguity in the figures.
Paragraph 31 of the judgment contains an internally contradictory sentence regarding the NSSF evidence.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gathuthi Tea Factory v Kamunya (Employment and Labour Relations Appeal E023 of 2024) [2025] KEELRC 1367 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 18th September 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1367/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.