[2023] KEHC 19130 (KLR)

Elijah v Cargo Movers Limited (Civil Appeal E140 of 2022) [2023] KEHC 19130 (KLR) (27 June 2023) (Judgment)

Neutral citation: [2023] KEHC 19130 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal E140 of 2022

DKN Magare, J

June 27, 2023

Between

Peter Mwongela Elijah

Appellant

and

Cargo Movers Limited

Respondent

Judgment

1. This appeal emanates from Mombasa SCCC COMM E009 OF 2022. From the claim for money reported borrowed by the appellant. The case involved money the former employer had agreed to pay. The entered into an independent contract, away from employment on the payment of certain amounts. There was no dispute in relation to employer employee.

2. The Appellant filed an appeal setting out 3 grounds.a.These were to the effect that, the court below lacked jurisdiction to deal with employment claimsb.erred in awarding outstanding employment compensationc.Erred in finding a valid resignation contract despite lack of proof of consideration.

Duty of court on issues of law 3. The duty of the court is set out in section of the small claims court. The said Section 38 provides as follows: -“38. Appeals (1) A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law. (2) An appeal from any decision or order referred to in subsection (1) shall be final.”

4. The Court of Appeal in M/s Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] eKLR elucidated what appeals on point f law is: -“I am alive to my duty as a second appellate court to determine matters of law only unless it is shown that the courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.

5. The case of Peter Gichuki King'aravsIEBC& 2 others, Nyeri Civil Appeal No. 31 of 2013 (Court of Appeal) (Visram, Koome & Odek, JJA) of 13. 02. 2014, the Court of Appeal was of the view that: -“It was held that it is trite law that the exercise of judicial discretion is a point of law and that the trial court in denying a prayer of scrutiny is exercising judicial discretion. The Court concluded that it would not be feasible for the Court of Appeal to order for a recount and scrutiny as this would involve matters of fact that were within the jurisdiction of the trial court. The court further held that the question of whether the trial judge properly considered and evaluated the evidence and arrived at a correct determination that is supported by law and evidence – with the caveat that the appeal court did not see the witness demeanor – is an issue of law.”

6. The duty of the appellate court when dealing with points of law only is different for the duty of the 1st Appellant Court, which was settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus Classicus case of Selle and anothervs Associated Motor Board Company and Others [1968] EA 123, where the law looks in their usual gusto, held by as follows;-“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”

7. The above is to mean that Court is to bear in mind that it has neither seen nor heard the witnesses. It is the trial court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them.

8. In Fidelity & Commercial Bank LtdvKenya Grange Vehicle Industries Ltd (2017) eKLR, the Court of Appeal, Ouko, Kiage and Murgor JJA held as doth; -“Courts adopt the objective theory of contract interpretation and profess to have overriding view sometimes called Four Corners of an Instrument, which insists that a document’s meaning should be derived from the document itself, without reference to anything outside of the document, extrinsic reversed…”

9. The trial court and this court will construct documents in a similar manner as there are no witnesses required to know the content of a document.

10. Where the findings of the trial Court are consistent with the evidence generally, this Court should not interfere with the same.

11. In Charles Kipkoech Leting v Express (K) Ltd & another[2018] eKLR, the court of Appeal was of the considered view that: -“This is a second appeal. Our mandate is as has been enunciated in a long line of cases decided by the Court. SeeMaina versus Mugiria [1983] KLR 78, Kenya Breweries Ltd versus Godfrey Odongo, Civil Appeal No. 127 of 2007, and Stanley N. Muriithi & Another versus Bernard Munene Ithiga [2016] eKLR, for the holdings inter alia that, on a second appeal, the Court confines itself to matters of law only, unless it is shown that the Courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse. See also the English case ofMartin versus Glywed Distributors Ltd (t/a MBS Fastenings) 1983 ICR 511 where in, it was held inter alia that, where a right of appeal is confined to questions of law only, an appellate court has loyalty to accept the findings of fact of the lower court (s) and resist the temptation to treat findings of fact and law, and, it should not interfere with the decisions of the trial or first appellate court unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law.

12. Where there is exercise of discretion, the appellate Court will not disturb the decision of a magistrate in the exercise of her discretion except where she has misdirected herself in some matter and as a result arrived at a wrong decision or unless it is manifest from the case as a whole that he was clearly wrong in the exercise of his discretion and that as a result there has been injustice.

13. The decision in Twaher Abdulkarim Mohamed v Independent Electoral and Boundaries Commission (IEBC) & 2 others, (2014) eKLR, addresses what consists a point of law as doth: -“Although the phrase ‘a matter of law’ has not been defined by the Elections Act, it has been held in Timamy Issa Abdalla vs Swaleh Salim Swaleh Imu & 3 Others, Malindi Civil Appeal No. 39 of 2013 (Court of Appeal), (Okwengu, Makhandia & Sichale, JJA) of 13. 01. 2014 that a decision is erroneous in law if it is one to which no court could reasonably come to, citingBracegirdle vs Oxney (1947) 1 All ER 126. See also Khatib Abdalla Mwashetani vs Gedion Mwangangi Wambua & 3 Others, Malindi Civil Appeal No. 39 of 2013 (Court of Appeal), (Okwengu, M'inoti & Sichale, JJA) of 23. 01. 2014 following AG vs David Marakaru (1960) EA 484.

14. I have perused the memorandum of appeal. The issues raised are issues of fact. This court has no jurisdiction to raise issues of fact. Indeed, for small claims court, even raising issues on the evidence act, is futile as the court is not bound by rules of evidence.

15. It is important to remember that Section 32 of thesmall claims court actprovides as doth: -“(1)The Court shall not be bound wholly by the Exclusion of strict Rules of evidence. Rules of evidence.(2)Without prejudice to the generality of subsection (1), the Court may admit as evidence in any proceedings before it, any oral or written testimony, record or other material that the Court considers credible or trustworthy even though the testimony, record or other material is not admissible as evidence in any other Court under the law of evidence.(3)Evidence tendered to the Court by or on behalf of a party to any proceedings may not be given on oath but that Court may, at any stage of the proceedings, require that such evidence or any part thereof be given on oath whether orally or in writing.

16. The effect of the foregoing is that unless there is gross breach of rules of natural justice, an appeal over evidence is an appeal on a point of fact.

17. The claim by the respondent, though arising out of an employment relation is not an employment dispute. It is an agreed amount to be paid. Section 87 of the Employment Actdefines, employment dispute as:-“Complaint and jurisdiction in cases of dispute between employers and employees(1)Subject to the provisions of this Act whenever—(a)an employer or employee neglects or refuses to fulfill a contract of service; or(b)any question, difference or dispute arises as to the rights or liabilities of either party; or(c)touching any misconduct, neglect or ill-treatment of either party or any injury to the person or property of either party, under any contract of service, the aggrieved party may complain to the labour officer or lodge a complaint or suit in the Industrial Court.(2)No court other than the Industrial Court shall determine any complaint or suit referred to in subsection (1). (3) This section shall not apply in a suit where the dispute over a contract of service or any other matter referred to in subsection(1)is similar or secondary to the main issue in dispute.

18. The claimant herein is on admitted amount. It is not one of the remedies set out in Section 44 or 45 of the Employment Act. The contract had been terminated. The only outstanding issue is a money claim over a contract dated 3/6/2021.

19. The contract is in writing for Ksh. 496,153. 85 as at 3/6/20221. The Appellant denies for the said sum was due and payable. There is no employment dispute. The respondent had no known defence for the claim. The duty of this court is to deal with appeals on points of law.

20. There is no issue raised that amounts to an issue of law. The claims over the employment court have not been filed. This is a specific amount agreed between parties. The court below was correct in all aspects.

21. The Appeal herein thus lacks merit and is dismissed in limine and the respondent shall have costs for Ksh. 60,000/=.

22. The file is closed.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 27TH DAY OF JUNE, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:No appearance for partiesCourt Assistant - Brian