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ELRCDismissedKisii ELRCA (as per judgment; arising from MCELRC claims in MCELRC Nos. 2, 3 & 4 of 2020)

Misiani v Board of Management Nyanchwa Preparatory School & another (Appeal E003 of 2024) [2025] KEELRC 1791 (KLR)

Employment and Labour Relations Court
18 June 2025
1,498 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan employment appeal failed because the worker couldn't prove his monetary claims with evidence, even though he'd already received substantial payments.

What this practically means

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Executive summary

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The Appellant sued the Respondents before the Magistrate's Court at Kisii claiming unfair labour practices, withheld salary and deductions of Kshs. 746,646.15, salary in lieu of notice, remittance of KRA PAYE tax and NSSF deductions, and costs. On 1st February 2022 the trial court entered judgment on admission of Kshs. 481,191.35, leaving Kshs. 265,454.80 to litigate. The Respondents' appeal against an interlocutory ruling was dismissed on 29th November 2023, conditional on a deposit of Kshs. 350,000/-, which was later released to the Appellant together with a further payment of Kshs. 134,060/-. The trial magistrate nonetheless dismissed the suit, finding the claims for unpaid leave, salary in lieu of notice and statutory deductions unproven. On appeal to the ELRC at Kisii, Nzioki Wa Makau, J. re-evaluated the evidence. He held that monetary claims must be specifically pleaded and strictly proved; the claims for unpaid leave and statutory deductions failed for want of evidence. The Appellant had received payments, including the security deposit, and deductions had been made for his children's school fees. The court found the sums conceded were paid and that the Appellant could not recover any balance through the appeal. There was no basis to interfere with the trial magistrate's decision and no re-computation would be done. The appeal was dismissed 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 Trial Magistrate erred in failing to properly compute the total award payable despite the claim being uncontroverted
  2. 2.Whether the judgment on admission of Kshs. 481,191.35 was fully satisfied and should have been factored into the final computation
  3. 3.Whether the Kshs. 350,000/- security deposit together with the further payment of Kshs. 134,060/- fully settled the claim
  4. 4.Whether the Trial Magistrate erred in dismissing the claims for salary in lieu of notice, unpaid leave, and remittance of KRA and NSSF deductions

Key legal issues

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01

Duty of a first appellate court

Holding

The appellate court must re-evaluate the evidence and reach its own conclusions while allowing for the disadvantage of not having heard the witnesses.

Reasoning

The court restated the standard role of an appellate court: to revisit the evidence afresh, weigh it independently, and give due allowance for the fact that, unlike the trial magistrate, it did not see or hear the witnesses testify. Applying that standard, it found the trial magistrate's evaluation could not be faulted.

p. 3
02

Proof of monetary and statutory claims

Holding

Monetary claims, including unpaid leave and statutory deductions, must be specifically pleaded and strictly proved; the claims failed for want of evidence.

Reasoning

The court agreed with the trial magistrate that the claims for unpaid leave, salary in lieu of notice and remittance of KRA and NSSF deductions lacked evidentiary support. The Appellant had received some payments and deductions had been made for his children's school fees, making it impossible to grant the claims on the documentary and oral evidence.

03

Satisfaction of the claim by payments and security deposit

Holding

The sums paid, including the Kshs. 350,000/- security and further payment, were received by the Appellant; any give and take in the concessions cannot be recovered on appeal.

Reasoning

The Appellant conceded receipt of payments claimed from the Respondents. The court held that if the concessions entailed compromise, the Appellant cannot recover the balance through the appeal. No re-computation was warranted and there was no basis to interfere with the trial court's decision.

p. 4

Legal principles established

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  • An appellate court must re-evaluate and re-examine the evidence before the trial court and arrive at its own independent conclusions, making allowance for not having seen or heard the witnesses.
  • Monetary claims must be specifically pleaded and strictly proved; absent proof, no award can be made.

Court orders

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  1. 1.The appeal before this Court fails and is accordingly dismissed
  2. 2.Costs of the appeal to the Respondent

The bench

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

majority

Wrote the judgment

On appeal from
Magistrate's Court at Kisii
Statement of claim dated 20th January 2020 (ELRC matter)
Jurisdiction invoked
First appellate jurisdiction over the Magistrate's Court (Employment and Labour Relations Court appeal)

Relief refused

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Setting aside the decision of the Trial Court and re-computation of sums payable

The Appellant did not adduce sufficient evidence to warrant additional awards; payments received and deductions for school fees made the claim unprovable; no reason to interfere with the Learned Magistrate's decision

p. 4

Claim for unpaid leave (63 days) under section 28 of the Employment Act

Dismissed for want of evidence; monetary claims must be specifically pleaded and strictly proved

p. 3

Claims for salary in lieu of notice and remittance of KRA and NSSF deductions

No evidence adduced to support the claims

p. 3

Costs

Appeal 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 appellate Court is duty bound to revisit and exhaustively re-evaluate and reexamine the evidence presented before the trial court to arrive at its own independent conclusions
p. 3Duty of a first appellate court
In any monetary claim, such must be specifically pleaded and strictly proved. The Learned Magistrate was correct to decline to award the same in the absence of proof.
Burden of proof in monetary claims
The Appellant did not adduce suficient evidence to warrant any additional awards from the Court.
p. 4Insufficiency of evidence
There is no re-computation that will be done and the appeal before this Court fails and is accordingly dismissed with costs to the Respondent.
Final orders - dismissal of appeal
the claims for unpaid leave and statutory deductions, were dismissed, in my considered view, as they should, for want of evidence.
p. 3Dismissal of statutory claims for want of evidence

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, "Misiani v Board of Management Nyanchwa Preparatory School & another (Appeal E003 of 2024) [2025] KEELRC 1791 (KLR)", Case Analysis (2025). Kisii ELRCA (as per judgment; arising from MCELRC claims in MCELRC Nos. 2, 3 & 4 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1791/eng@2025-06-18

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