https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2244

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **ELRC APPEAL NO. E305 OF 2024** *(Before D. K. N. Marete)* **GOTHERD MBURU MWAURA……………………………………………APPELLANT** VERSUS **TWINRIVER 1 ESTATE………………………...…………………………RESPONDENT** **JUDGMENT** This matter was originated by way of a Memorandum of Appeal dated 23rd October, 2024. It is an appeal from a judgment delivered on 26th September, 2024 in Thika in MCELRC Cause No. E005 of 2022. The appeal is confined to two grounds and does not challenge the trial court’s finding on the conversion of the Appellant’s employment from casual to term contract under Section 37(2) of the Employment Act, 2007 nor does it disturb the monetary awards made by the trial court save as stated herein. The Memorandum of Appeal sets out the following grounds: 1. *THAT the Learned Trial Magistrate failed to appreciate the meaning of section 37(2) of the Employment Act, 2007 hence grossly misdirected himself on a point of Law and fact that the Appellant had to prove that he was not paid off duties allowance despite finding that the Appellant's casual employment had converted to term contract by dint of section 37 of the Employment Act and he was therefore entitled to be paid off-duty allowances in accordance with the said section.* 2. *THAT the Learned Trial Magistrate misdirected himself in Law by applying wrong principles in denying the Appellant costs of the suit.* The Appellant prays that this appeal against part of the judgment delivered on 26th September, 2024 in Thika MCELRC Cause No. E005 of 2022 be allowed, that the off-duty allowance be revised upward and that the costs of this appeal and of the trial court proceedings be awarded to the Appellant. The Appellant’s case, as set out in his written submissions, is that his employment was initially treated as casual but was converted to a term contract under Section 37(2) of the Employment Act, 2007 once his continuous casual service exceeded one month. Flowing from that conversion, he submits that he was entitled not merely to pro-rated payment for rest days but to the full off-duty allowance of Kshs. 73,274.00 as pleaded. On costs, he submits that costs follow the event, that he succeeded substantially at trial, and that the trial court’s order that each party bear its own costs was an improper exercise of the costs discretion. The Respondent opposed the appeal vide written submissions. It submits that this being a first appeal, the court should be slow to disturb findings of fact unless plainly wrong. On the merits, the Respondent submits that the trial court correctly held that the legal burden of proof lay with the Appellant to establish the specific quantum of the off-duty allowance claimed, and that he did not discharge that burden. On costs, the Respondent submits that costs are a matter of judicial discretion and that the trial court’s order, founded on partial success, was a proper exercise of that discretion. The issues for determination are: 1. Whether the trial court erred in dismissing the Appellant’s claim for off-duty allowance of Kshs. 73,274.00. 2. Whether the trial court erred in ordering that each party bears its own costs of the suit. 3. Who bears the costs of this cause. In the celebrated authorities of **Peters v Sunday Post Limited [1958] EA 424** and **Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123**, it was observed that the duty of a first appellate court was set out thus: the appellate court is under an obligation to reconsider and re-evaluate the evidence on record, draw its own independent conclusions on issues of fact and law and arrive at its own decision, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify and should therefore not interfere with credibility findings unless they are plainly wrong. The 1st issue for determination is whether the claim for off-duty allowance was wrongly dismissed. It is not in dispute, and is not the subject of this appeal, that the trial court found that the Appellant’s employment had converted from casual to a term contract under Section 37(2) of the Employment Act, 2007 and that he was in principle entitled to be paid for weekly rest days that a term contract employee is ordinarily entitled to under Section 27 of the Act. The contest on appeal is confined to the quantum of the allowance and whether the Appellant proved the specific figure of Kshs. 73,274.00 as pleaded. This however, is not the end of the matter. The claim advanced was not a bare claim for unpaid rest days in principle; it was a specific, particularised monetary claim for the exact figure of Kshs. 73,274.00. Where a claimant elects to plead and press a specific, quantified claim, he must prove that figure by evidence. The Appellant led no evidence, whether by production of wage records, payslips, or other documentation, from which the specific figure could be independently verified. In those circumstances, the trial court was correct to dismiss the specific sum claimed. For the avoidance of doubt, it is clarified that the Appellant’s casual employment having converted to a term contract under Section 37(2) of the Employment Act, 2007 he was in principle entitled to off-duty compensation from the date of conversion; what was not proved was the specific quantum of Kshs. 73,274.00. The 2nd issue for determination is whether the order on costs was wrongly made. Costs are, by Section 27 of the Civil Procedure Act, in the discretion of the court and that discretion must be exercised judicially, not capriciously. The general rule is that costs follow the event. Where, however, success is divided, the court may make such order as reflects the overall outcome. The trial court’s order that each party bears its own costs was founded on its finding that the Appellant succeeded only in part: he was awarded a converted employment status and certain terminal benefits, but his primary monetary claim for off-duty allowance was dismissed. On i re-evaluation, this court is satisfied that the trial court’s costs order was a proper exercise of its discretion in circumstances of divided success. The order is thus upheld. I am therefore inclined to dismiss the appeal with costs to the Respondent. Delivered, dated and signed this **31st** day of **July** 2026. **D. K. Njagi Marete** **JUDGE** **Appearances:** 1. Miss Nyabisi holding brief for Gakoi Maina & Company Advocates for the Appellant. 2. Mr. Jessee instructed by Jessee Kariuki & Company Advocates for the Respondent.