Mathenge t/a Imperial Water Services v Juma (Appeal E210 of 2023) [2025] KEELRC 2048 (KLR)
The bottom line
#A Kenyan court cut an unfairly terminated worker's award to Kshs.660,576.92 but confirmed he was employed and entitled to compensation.
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 law and fact in disregarding the appellant's application dated 16.08.2023 and therefore reaching a wrong conclusion
- 2.Whether there was an employer-employee relationship between the parties
- 3.Whether the trial court erred in the reliefs granted
Key legal issues
#Whether the trial court disregarded the appellant's application dated 16.08.2023
The trial court did not disregard the application; it was never canvassed and there was no ruling, so the issues raised in it are moot on appeal
The application sought to arrest judgment and re-open the case but there were no proceedings or ruling on it. The physical file went missing on the fixed date and the appellant failed to follow up and prosecute the application. The obligation to prosecute cases and applications lies with parties; the advocate's dropped call allegation was not canvassed at trial and cannot arise at appellate level.
Whether the appellant was accorded fair hearing
Yes; service was proved by an affidavit of a process server and hearing notices, so the right to fair hearing was satisfied
The court found an affidavit of service sworn by Richard Oyangi Ogola explaining personal service of summons, mention notice and the claim, plus notices culminating in the hearing notice for 31 July 2023. The allegation of non-service was untrue and there was no basis to fault the trial court.
Whether there was an employer-employee relationship
Yes; the unchallenged evidence including the Ministry of Labour demand and conciliation agreement supported the trial court's finding
The appellant's claim that the respondent was a commission agent was uncorroborated. The respondent testified and called a witness who confirmed the employment relationship, and the Ministry of Labour wrote a demand letter and facilitated a conciliation meeting in which the appellant agreed to pay terminal dues. The trial court heard the testimony, which this appellate court lacks the benefit of, and its finding was not clearly wrong.
Whether the reliefs granted were merited
Partly; salary arrears reduced to the Labour Officer's assessed Kshs.505,000, leave and public holiday awards set aside, notice pay and service pay upheld, and maximum compensation of 12 months reduced to 5 months
The salary arrears had been determined by the Labour Officer at Kshs.505,000 and the trial court gave no reason to deviate. Leave and public holiday claims were not pleaded or proved. Service pay was proved under section 35(5) and (6) of the Employment Act. The maximum compensation award was excessive for 3 years of service, and applying section 49 factors the court substituted 5 months' compensation.
Legal principles established
#- A first appellate court must re-evaluate the evidence and draw its own conclusions, while making due allowance for the fact that it did not see or hear the witnesses
- An appellate court will not interfere with the exercise of discretion by an inferior court unless satisfied the decision is clearly wrong
- The obligation to prosecute applications lies with parties; an application not canvassed before the trial court cannot ground an appellate complaint
- The right to fair hearing is fulfilled once a party is accorded the opportunity to be heard
- Claims for untaken leave and public holidays must be pleaded and proved
Court orders
#- 1.The termination is held as unfair
- 2.Judgment entered in favour of the claimant against the respondent: Kshs.505,000/= unpaid salary arrears; Kshs.20,000/= one month's salary in lieu of notice; Kshs.35,576.92/= service pay; compensatory damages of Kshs.100,000/=; total sum awarded Kshs.660,576.92
- 3.The Respondent to issue the Claimant with a certificate of service under section 51 forthwith
- 4.The cost of this suit be borne by the Respondent
- 5.Interest on (a) and (c) above at court's rate from the date of delivery of the judgment until payment in full
- 6.Costs of the appeal to the respondent
- 7.Stay of 30 days
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (Employment and Labour Relations, Machakos)
- MCELRC/E051/2023
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court in employment and labour relations matters
Relief refused
#Setting aside the entire judgment of the trial court with dismissal orders substituted
The appeal was only partially successful; the trial court's findings on fair hearing, service and employer-employee relationship were upheld
Claims for unpaid annual leave and unpaid public holidays
Not pleaded and not proved on a balance of probabilities; not raised before the Labour Officer
Costs
Costs of this suit to be borne by the Respondent; costs of the appeal to the respondent.
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.
In the upshot, the appeal is partially successful on the reliefs granted.
Judgment is entered in favour of the claimant against the respondent as follows:
The cost of this suit be borne by the Respondent.
The court holds that the trial court did not disregard the application as the same was not canvassed.
The court was satisfied that the respondent was granted the opportunity to be heard, hence the right to a fair hearing was satisfied.
The salary arrears award is set aside and substituted with Kshs. 505,000 as per the demand letter.
Costs of the appeal to the respondent.
Issues in the judgment
#The grounds of appeal and submissions are internally inconsistent on the quantum of the trial court judgment: 'delivered on 8th September 2023 against Appellant of kshs.895,383/=' versus the recorded award of Kshs.894,383.91
The appellant's prayer for costs contradicts itself, seeking that the appeal be allowed 'with costs to the Respondent' although the respondent opposed the appeal
The parties' roles are inconsistently described; the memorandum of claim is said to be the 'Claimant's/Appellant's case' even though the appellant before this court was the respondent/employer before the trial court
Paragraph numbering repeats; two consecutive paragraphs are both numbered 39
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mathenge t/a Imperial Water Services v Juma (Appeal E210 of 2023) [2025] KEELRC 2048 (KLR)", Case Analysis (2025). ELRC Appeal No. E210 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2048/eng@2025-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.