https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1467

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT & LABOUR RELATIONS COURT** **AT MOMBASA** **APPEAL E117 OF 2025** **MITCHELL COTTS FREIHGT LIMITED…………APPELLANT** **VERSUS** **JAMES OMONDI OKUMU.………………….………RESPONDENT** JUDGMENT 1. The appeal herein impugns the whole of the judgment of the trial Court delivered on the date above mentioned in Cause No. E 382 of 2021, [consolidated with Cause No. E 549, 390,391, 772,773, 775, and 804 of 2021]. 2. . THAT the Learned Magistrate erred in law and in fact in entering judgment for the Respondent against the Appellant. 3. THAT the learned magistrate erred in law and in fact in finding and ordering that the Respondent was entitled to; 4. Notice pay, 5. Leave pay 6. Damages for unfair termination 7. Cost of suit 8. and interest from the date of filing 9. THAT the learned magistrate erred in failing to appreciate and/or consider the pleadings, evidence and oral testimonies of the Appellant, thereby arriving at a wrong conclusion, particularly as regards the employment of the Respondent by the Appellant. 10. THAT the learned magistrate, having acknowledged that no employment contract was adduced in evidence, erred in law in holding that the Appellant had unfairly terminated the Respondent. 11. THAT the learned magistrate erred in failing to appreciate that there were two (2) respondents in this case, thereby making a finding only against the Appellant. 12. THAT the learned magistrate misapprehended the matters in issue for determination and thereby misapplying the law. 13. THAT the learned magistrate erred in law and fact in failing to appreciate the duty /burden imposed on the Respondent under section 47(5) of the Employment Act 2007. 14. THAT the learned magistrate erred in law and fact in disregarding the appellant’s evidence and submissions made before her, which clearly demonstrated that there was no employer/employee relationship between the Appellant and the Respondent. 15. THAT the learned magistrate wholly misinterpreted the matters in issue for determination in the proceedings before her, in consequence of which she erred in the analysis of all the material evidence placed before her, as well as the decision consequently made. 16. THAT the learned magistrate further erred in failing to: 17. Appreciate the significance of the various facts that emerged in the evidence placed before her. 18. Consider or properly consider all the evidence placed before her. 19. Make any proper findings on the evidence placed before her. 20. This appeal should succeed on this single ground. By an Amended Memorandum of Claim dated 25th August 2021, the Claimant in the lead file, Cause No. 382 of 2021, joined the 2nd Respondent as a party to the matter. In the pleadings, he maintained that at all material times the 1st Respondent, Mitchell Cotts Freight Kenya Limited, was his employer, but acknowledged that at some point the 1st Respondent had contracted the 2nd Respondent, Conspet Enterprises Limited, to manage Human Capital matters for them. 21. By a Memorandum of Response dated 20th May 2021, which apparently was not amended and may have prompted the amendment of the Claimant’s pleadings as stated above, the Respondent had pleaded that the Claimant was not their employee but an employee of Conspet Enterprises Limited. 22. The second Respondent appeared in court on 20th September 2021 and submitted a Response to the Memorandum of Claim dated 30th November 2021. In the response, it denied the Claimant’s cause of action and entitlement to the reliefs sought. 23. Undoubtedly, based on the pleadings of the three parties and the submissions submitted before the trial court, one of the crucial issues that the learned trial Magistrate should have recognised for determination is the identification of the employer of the Claimants at the relevant times, as well as the party responsible for bearing liability arising from the judgment. 24. A close look at the trial court’s judgment reveals that the learned trial Magistrate cast it as though the claim related to a single Respondent, and that liability would attach to that single Respondent, whom she did not explicitly identify. 25. The learned Magistrate ought to have made a clear, definitive finding on the fundamental question of who, as between the two Respondents, was the employer of the Claimants, at the material times, for liability in an employment claim can only attach to the party found to have stood in an employer-employee relationship with the Claimants. Equally important, the trial court was under a duty to determine which of the two respondents would bear the legal and financial responsibility arising from the judgment. 26. By failing to resolve this central issue, the court left the judgment vague, uncertain, and incapable of proper enforcement. A court cannot impose liability ambiguously without first establishing the legal basis upon which each party is answerable. Such omission amounted to a failure to determine a substantive issue placed before the court for adjudication. 27. The omission cannot be termed a mere procedural lapse or inconsequential error. It occasioned a miscarriage of justice because parties were left without clarity as to their respective rights and obligations under the judgment. In effect, the court failed to conclusively determine the dispute before it. 28. In the circumstances, this Court is of the view that the failure by the trial Magistrate to pronounce herself on the identity of the employer, and consequently the party liable under the judgment, is sufficient ground to warrant interference by this Court. The interest of justice demands that the judgment and consequential orders be set aside, and the matter be remitted for a fresh hearing before another Magistrate so that the issues in controversy may be properly and conclusively determined. 29. The fresh hearing is to be expeditiously conducted and concluded within 90 days of the date of this Judgment. 30. Orders accordingly. **Read, Signed and Delivered this 28th Day of May 2026.** **OCHARO KEBIRA** **JUDGE.**