Damaris Magoma Makori v Kisii County Government

an employee of the respondent. She asked that her withheld salaries be paid, together with interest and the costs of the cause. 3. The respondent denied the Claim in the response dated 27th October 2016. It was stated that the appellant constantly absented herself from duty; that on 17th December 2009 her salary was stopped and reinstated in 2010 with a warning; and that in July 2010 she deserted duty; and on 27th November 2011 her salary was stopped, and her name removed from the payroll. It was pleaded that by that time the respondent was constituted in March 2013, the appellant had ceased to be an employee of Municipal Council of Kisii for two years, and therefore could not have been absorbed by the respondent; that the letter by the Town Administrator indicating that she was an employee or the respondent was written without authority, as only the County Secretary under section 44(3) of the County Government Act had authority to write such a letter or restore her into employment; that the letter of the Town Administrator, in any case, had no supporting documents or minutes to show that she had been reinstated following the laid down disciplinary process; that in February 2014 all the employees (including those with pending disciplinary process) were required to subject themselves to a head count, but the appellant did not show up; that by newspaper advertisement in the Daily Nation, the respondent asked those who had not been counted to submit their documents by 17th April, 2014, but the appellant did not comply; and, lastly, that there was a national and county governments widely publicized Biometric Data Registration of public officers which the appellant failed to subject herself to. 4. This is the dispute that the trial court was asked to determine. The appellant and the respondent consented to not calling witnesses for either side, and to have the case determined on the basis of written submissions. In the brief judgment that was delivered by the learned M. B. Nduma, J. on 9th July 2019, it was held as follows:“ 5) No material facts averred in the memorandum of claim and witness statements have been admitted by the respondent. The averments in these documents do not constitute evidence and cannot be admitted to prove the case by the claimant. 6) The claimant elected not to testify before court at her own peril. The advocate for the claimant Mr. Sagwe and Mr. Onsembe for the respondent on 15th October 2018 recorded a consent that the suit will proceed by way of written submissions and that oral evidence had been dispensed with. 7) It is this court’s considered finding that the claimant has not proved the particulars of claim, on a balance of probabilities and the suit against the respondent is dismissed in its entirety. Since no hearing took place, parties are to bear their own costs of the suit.” 5. The appellant was aggrieved by the decision and filed the present appeal in which the grounds were that the trial court had erred by not considering the self-explanatory documents that had been annexed to the Claim and the witness statements; that, had the learned Judge considered them, he would have found that the appellant had proved her case on the balance of probabilities. 6. When the appeal came before us on 12th May 2025, learned counsel Mr. Sagwe was for the appellant and learned counsel Ms. Bonareri appeared for the respondent. Learned counsel stated that each had filed written submissions on which they were relying. Unfortunately, none had filed submissions. We asked the registry to contact them for the submissions. They did not give copies of the said written submissions. https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1904/eng@2025-11-07 2

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7. Having considered the impugned judgment and the grounds in the memorandum of appeal, the question for our determination is whether, on the material that was available to the trial court, it can be said that there was any error in the determination that the appellant had failed to prove her case on the balance of probabilities. 8. We reiterate that under section 107(1) of the Evidence Act (Cap 80): “ Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that these facts exist.” 9. In Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] IEA 334, this Court stated that:“ As a general proposition under section 107(1) of the Evidence Act, Cap. 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the court to believe its existence which is captured in sections 109 and 112 of the Act.” 10. The respondent filed a defence to deny the appellants claim. The claims by the appellant that she was the respondent’s employee who had been improperly, unprocedural, wrongfully and illegally terminated and or laid off were specifically denied. Whatever documents and or witness statements that had been filed along with the claim, it was incumbent upon the appellant to testify in a bid to prove her case, now that there was no admission by the respondent. The contents in the claim, in the documents and in the witness statements remained allegations that required proof. The appellant could only discharge the burden placed upon her under sections 107(1) and 109 of the Evidence Act by testifying to prove the claims she had made against the respondent. 11. In CMC Aviation Ltd v Cruis Air Ltd (1) [1979] KLR 103, Madan, JA observed as follows:“ Pleadings contain the averments by the three concerned until they are proved or disproved, or there is admission of them or any of them by the parties, they are not evidence and no decision could be founded upon them. Proof is the foundation of evidence. As stated in the definition of “evidence” in section 3 of the Evidence Act, evidence denotes the means by which an alleged matter of fact, the truth of which is submitted for investigation, is proved or disproved. Averments are matters the truth of which is submitted to investigation. Until the truth has been established or otherwise, they remain unproven............................ The pleadings in a suit are not normally evidence. They may become evidence if they are expressly or impliedly admitted as then the admission itself is evidence. Evidence is usually given on oath. Averments are not made on oath. Averments depend on evidence for proof of their contents.” 12. In the matter before the learned Judge, the appellant sought to rely on her pleading, the documents and the witness statements as proof of her claim. None of them was on oath. None of her averments had been admitted by the respondent. In the circumstances, we agree with the learned Judge that the appellant failed to call evidence to prove her claim. The claim was therefore rightly dismissed with costs. 13. Consequently, we find no merit in the appeal, which we dismiss with costs. DATED AND DELIVERED AT KISUMU THIS 7TH DAY OF NOVEMBER, 2025 ASIKE - MAKHANDIA https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1904/eng@2025-11-07 3

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........................................ JUDGE OF APPEAL H.A. OMONDI ........................................ JUDGE OF APPEAL A.O. MUCHELULE ........................................ JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1904/eng@2025-11-07 4

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