New Fulila Day & Night Club v Mulinge (Appeal E186 of 2024) [2025] KEELRC 2699 (KLR)
The bottom line
#An employer's appeal against an award of salary and leave dues to a former night guard failed, and the original Thika court judgment stands.
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 appeal was incompetent for failure to file and serve a Notice of Appeal
- 2.Whether the trial court erred in failing to find that the respondent had been paid all his dues at the time of leaving employment
- 3.Whether the respondent was paid all his salary and leave dues
- 4.Whether the respondent provided any evidence of actual underpayment to support the trial court's award
Key legal issues
#Necessity of a Notice of Appeal before filing an appeal in the ELRC
The objection fails; neither the ELRC Rules nor the Civil Procedure Rules require a Notice of Appeal for appeals from lower courts, and the Court of Appeal Rules cited by the respondent do not apply to this Court.
The respondent raised a preliminary objection that the appeal was incompetent because no Notice of Appeal was filed and served, relying on Rules 77(1), (2) and (3), 79(1) and 89(1) of the Court of Appeal Rules. The Court held that the rules of its own court and the Civil Procedure Rules contain no such requirement, and that the Court of Appeal Rules apply to the Court of Appeal, not to the ELRC. The objection therefore had no merit.
Standard of review of the first appellate court on findings of fact
The appeal is by way of retrial, but the appellate court will not disturb findings that are supported by the law and the evidence merely because it might have reached a different result.
Guided by Peters v Sunday Post Limited [1958] EA 424, the Court restated that a first appellate court must reconsider and re-evaluate the evidence while allowing for the trial court's advantage of seeing and hearing the witnesses. The Court acknowledged that an appeal to it from a magistrate's court is by way of retrial, but cautioned against acting whimsically or substituting its own preferred view. Where the trial judgment accords with the operative law and a reasonable deduction of the evidence, there is no basis for interference.
Payment of employment dues, salary and leave pay, and proof of underpayment
The trial court exercised its discretion judicially in finding for the respondent; the Court declined to interfere and dismissed the appeal.
The appellant contended that all dues, including leave pay, were paid at the 2020 nationwide lockdown, that the respondent never objected to his salary or increments, and that no evidence of underpayment or of the period of default was adduced, invoking the three-year limitation for claims per G4S Security Services (K) Limited v Joseph Kamau. On review of the trial judgment against the evidence, the Court was satisfied the trial court's findings were judicial and reasonable, and found no reason to interfere.
Legal principles established
#- An appeal from a magistrate's court need not be preceded by a Notice of Appeal; Court of Appeal Rules do not apply to the Employment and Labour Relations Court
- An appeal to the ELRC from a magistrate's court is by way of retrial, but the appellate court will not interfere with a trial court's findings that are in line with the operative law and a reasonable deduction of the evidence
Court orders
#- 1.The preliminary objection on the failure to file a Notice of Appeal is found to have no merit and is dismissed
- 2.The appeal is found without merit and is dismissed with costs
- 3.It is so ordered
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Thika Chief Magistrate's Court (Employment and Labour Relations)
- CMELRC No. 002 of 2022
- Jurisdiction invoked
- First appellate jurisdiction over judgments of the magistrates' court (appeal by way of retrial under the rules of the Employment and Labour Relations Court; Rule 41 referenced)
Relief refused
#Setting aside of the trial court judgment and stay of the orders of 2nd November, 2023
The trial court exercised its discretion judicially and the appellate court found no reason to interfere
Costs
The appeal is dismissed with costs (to the respondent); the appellant's prayer for costs to the appellant was not granted.
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.
Regarding the preliminary objection over the failure or omission by the appellant to file a Notice of Appeal, the Court finds no merit in the objection since the Rules of this Court and even the Civil Procedure Rules do not require that an appeal from the decision of a lower court should be preceded by a Notice of Appeal.
First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;
The decision of the trial court need not be perfect but provided it is in line with the operative law and a reasonable deduction of the evidence presented before it, this court will not interfere simply because as an appellate court it is clothed with jurisdiction to revaluate the evidence and come up with its own findings.
The Appeal is therefore found without merit and is hereby dismissed with costs.
It is so ordered.
Issues in the judgment
#The respondent's counsel is said to have relied on "Ruless 77(1), (2) and (3), 79(1) and 8991)" - an apparent typographical error in the rule citation, and the appeal record references a Memorandum of Appeal "dated 30th November, 2023" without a case number for the appeal itself in this judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "New Fulila Day & Night Club v Mulinge (Appeal E186 of 2024) [2025] KEELRC 2699 (KLR)", Case Analysis (2025). Thika CMELRC Appeal dated 30th November, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2699/eng@2025-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.