[2021] KECA 1063 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: NAMBUYE, KARANJA & M’INOTI, JJ.A)

ELDORET CIVIL APPEAL NO. 141 OF 2017

BETWEEN

MOSES SEGITE...........................................APPELLANT

AND

KENYA FLOURSPAR LIMITED............RESPONDENT

(Being an appeal against the Judgment and Decree of the Employment and Labour Relations Court at Nairobi (S. Radido, J.) dated and delivered on, 29thSeptember 2017

in

ELRC Appeal No. 2 of 2017)

**************

JUDGMENT OF THE COURT

1. This is a second appeal from the judgment of the Employment and Labour Relations Court (ELRC) dated 29th September, 2017 where the learned Judge, Radido, J. set aside the judgment of the trial Court in favour of Moses Segite (the appellant) holding that the appellant was wrongfully terminated through redundancy, hence awarding him Kshs. 285,180 as severance pay.

2. The brief facts leading to this appeal are that the appellant was a unionized employee of Kenya Flourspar Limited (the respondent) with a checkered career running from 1st January, 1982 until on or about 1st September, 1994 when his employment was terminated on account of redundancy. Aggrieved, the appellant filed a suit in the Chief Magistrate’s Court at Eldoret claiming several reliefs for wrongful dismissal from employment.

3. By a judgment dated and delivered on 29th July, 2008, the learned Principal Magistrate, W. Njage, found in favour of the appellant and concluded as follows;-

“I do hold that the plaintiff is entitled to the following from the defendant

a. Eight months’pay at Kshs. 54, 320/=

b. Terminal benefits of Kshs. 728, 277. 50/=

c. Service pay of Kshs. 285, 180. 00/=

d. Terminal package for six months at Kshs. 40, 740/=

e. Payment in lieu of notice of Kshs. 20, 370/=

f. Award leave and travelling allowance of Kshs. 33, 600/=

g. Baggage allowance of Kshs. 5, 000. 00/=

The total comes to Kshs. 1,167, 437. 50/= out of this the plaintiff received part payment of Kshs. 199, 601. 45/= … The balance will be Kshs. 967, 836. 05….”

4. Dissatisfied, the respondent filed an appeal before the ELRC on grounds, inter alia,that the learned magistrate erred in law and fact: by holding that the appellant’s termination was unlawful; in misapprehending the evidence before him hence misdirecting himself and arriving at an erroneous conclusion; and in awarding reliefs in favour of the appellant as he did.

Conscious of his duty as a first appellate court to re-evaluate and re-analyse the evidence before him afresh, (See: Selle & Another v. Associated Motor Boat Co. Ltd. & Others (1968) EA 123), the learned Judge meticulously went through the evidence before him and weighed it against each relief granted by the trial court and arrived at his own conclusion in respect of each item. Ultimately, the learned Judge affirmed the finding that the appellant was wrongfully terminated through redundancy and upheld the award of Ksh. 285,180/= as severance pay. The learned Judge however found the other claims not proved to the required standard and set aside all the other awards.

5. The appellant now proffers the instant appeal, against the judgment of the 1st appellate Court in its entirety, seeking to reinstate the judgment of the trial Court which had awarded him Kshs. 967,836. 50/= as damages for unlawful termination of employment taking into consideration that the respondent had previously made part payment of Kshs. 199, 601. 45/= to the appellant. The appeal is premised on 13 grounds, the main ones being that the learned Judge erred in: misapprehending the evidence before him and misdirecting himself in finding that the appellant was wrongfully and unlawfully dismissed by the respondent through redundancy; by shifting the burden of proof to the appellant and; reversing the finding and the relief as awarded by the trial Court.

6. The appeal was canvassed through written submissions by way of video link in line with this Court’s directions on Covid-19 protocols.

7. Urging the Court to allow the appeal, counsel for the appellant, citingKenya Breweries Limited v. Godfrey Odoyo, Civil Appeal No. 127 of 2007andMwangi v. Wambugu (1984) KLR 453,submitted that the learned Judge failed to properly re-evaluate the evidence before him hence arriving at a wrong conclusion of fact; he urged this Court to interfere with such findings of fact. He maintained that the learned Judge’s misapprehension of evidence led to an erroneous finding that the appellant was paid Kshs. 76,354 as terminal benefits yet the same was not in evidence. Further, that the learned Judge erred by setting aside the award of Kshs. 728, 277. 50 despite finding that the appellant’s computation of terminal benefits was mathematically correct.

8. Counsel urged that the learned Judge erred in law in shifting the burden of proof to the appellant, yet he had adduced sufficient evidence in support of his prayers in the plaint. He maintained that once the appellant proved sufficiently on a balance of probabilities that he was indeed entitled to the reliefs of 8 months ’salary, terminal benefits, 6 months ’terminal package, payment in lieu of notice, accrued leave and baggage allowance, then the burden of proof shifted to the respondent to prove the contrary. Therefore, that in the absence of any such proof by the respondent, the evidence by the appellant was basically unopposed, hence the same ought to have been awarded as prayed.

9. Counsel further submitted that the learned Judge completely ignored the evidence tendered by the appellant on how terminal benefits were calculated as per the provisions of the Collective Bargaining Agreement (CBA). Further, that in computing the terminal benefits the learned Judge purported to re-write the applicable provisions of the CBA entered into by the respondent and the union contrary to the principle that parties are bound by the terms of their contract. (See: National Bank of Kenya Limited v. Pipelistic Samkolit (K) Limited & Another(2001) KLR 112).

10. He argued that according to evidence adduced by the appellant, the appellant was entitled to an increment in salary under the CBA, hence all calculations would be based on the said increment. He maintained that this evidence was not controverted however, the learned Judge in complete disregard of the same stated that there was no evidential basis for the amount of Kshs. 33,600/- claimed as accrued leave and travel allowance. Further, that payment in lieu of notice and baggage allowance was already paid by the respondent. He urged that this was a misapprehension of the evidence before the court.

11. Counsel submitted that the learned Judge in his judgment stated that the dues paid to the appellant included baggage allowance of Kshs. 5,000/-, and consequently failed to award the same. In addition, he submitted that a careful perusal of the evidence before the Court and in particular the terminal benefits schedule reveals that the figure of Kshs. 5,000/- does not appear anywhere. Further, that the figure of Kshs. 17,620. 25/- which the learned Judge awarded as payment in lieu of three months ’notice is not supported by the evidence on record.

12. Placing reliance on Jasbir Singh Rai & 3 Others v. Tarlochan Singh Rai & 4 Others, SC Pet. No. 4 of 2014; [2014] eKLR, he urged that the appellant be awarded costs of this appeal.

13. Opposing the appeal, counsel for the respondent citing Kenya Breweries Ltd v. Godfrey Odoyo,(supra) submitted that this Court is confined to addressing issues of law only and it ought not to depart from the findings of fact of the two courts below unless it is demonstrated that the two courts considered matters they ought not to have considered or failed to consider matters they ought to have considered or that the entire decision is perverse. He urged that the grounds raised by the appellant as appears on the face of the memorandum of appeal are clearly on issues of fact, which cannot be interrogated and determined on second appeal.

14. Relying on Gichinga Kibutha v. Caroline Nduku (2018) eKLR counsel submitted that the appellant had a duty to discharge the burden of proof whether or not the evidence he produced before the Court was uncontroverted.

15. He urged that the learned Judge properly analyzed the evidence before him. Further, that the appellant’s arguments that the learned Judge failed to consider his evidence was unfounded as from a perusal of the Judge’s decision, it is evident that all the documents referred to by the learned Judge formed part of the appellant’s evidence.

16. On the issue of shifting the burden of proof, counsel submitted that the same was a misconception on the part of the appellant. He maintained that all the evidence before the trial court was subjected to scrutiny and the learned Judge could not be faulted for doing so before determining whether the appellant had proved its case before arriving at his findings on the same. He urged the Court to dismiss the appeal.

17. This being a second appeal, section 72 (1) Civil Procedure Act restricts this Court’s jurisdiction to matters of law only. Further, in Kenya Breweries Ltd v. Godfrey Odongo, Civil Appeal No. 127 of 2007andStanley N. Muriithi & Another v. Bernard Munene Ithiga(2016) eKLR, this Court held that, a second Appellate Court ought to confine 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.

18. Having considered the pleadings before this Court, the rival submissions by counsel and supporting authorities and the evidence on record, the issue falling for the determination of this Court is:-

a) Whether the learned Judge erred in setting aside the trial Court’s judgment granting reliefs as he did in favour of the appellant.

19. It is not in dispute that the appellant was declared redundant and that such redundancy was wrongful based on the fact that no notice was served on him. What is in dispute is the terminal dues awarded to the appellant by the first appellate court upon setting aside the decision of the trial court.

20. From the appellant’s submissions, it is apparent that he faults the ELR Court for failing to award him a claim of 8 months ’salary, terminal benefits, terminal package equivalent to 6 months ’pay, pay in lieu of notice and leave and travelling allowance as prayed for and awarded by the trial court.

21. In his submissions, the appellant challenges the learned Judge’s decision on the basis that the learned Judge erred: by misapprehending the evidence before him hence arriving at erroneous findings that the appellant was paid Kshs. 76,354 as terminal benefits yet the same was not in evidence; by setting aside the award of Kshs.728, 277. 50 in spite of finding that the appellant’s computation of terminal benefits was mathematically correct and; by failing to consider how terminal benefits were to be calculated as per the provisions of the Collective Bargaining Agreement (CBA).

22. The appellant also faulted the learned Judge for failing to award him all reliefs prayed for as his claim remained uncontroverted owing to the fact that the respondent neither called any witnesses nor produced documentary evidence before the trial court. Further, that the learned Judge erred in law by shifting the burden of proof to the appellant, yet he had adduced sufficient evidence in support of his prayers in the plaint. It was his argument that once the appellant proved sufficiently on a balance of probabilities that he was indeed entitled to the reliefs of 8 months' salary, terminal benefits, 6 months ’terminal package, payment in lieu of notice accrued leave and baggage allowance, then the burden of proof shifted to the respondent to prove the contrary.

23. The Evidence Act is clear on whom the burden of proof lies. Section 107provides as follows:-

“1. 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 those facts exist.

2. when a person is bound to prove the existence of any facts, it is said that the burden of proof lies on that person.”

Section 109 of the same Act further provides:-

“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by law that the proof of that fact lie on any particular person.”

24. This Court in Charterhouse Bank Limited (Under StatutoryManagement) v. Frank N. Kamau, Nairobi Civil Appeal No. 87 of2014pronounced itself as follows:-

“In Karugi & Another v. Kabiya & 3 Others [1987] KLR 347, this Court held that the burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof.

We would therefore venture to suggest that before the trial court can conclude that the plaintiff’s case is not controverted or is proved on a balance of probabilities by reason of the defendant’s failure to call evidence, the court must be satisfied that the plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence by the defendant. Where the defendant has subjected the plaintiff or his witnesses to cross-examination and the evidence adduced by the plaintiff is thereby thoroughly discredited, judgment cannot be entered for the plaintiff merely because the defendant has not testified. The plaintiff must adduce evidence, which in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities, it proves the claim. Without such evidence, the plaintiff is not entitled to judgement merely because the defendant has not testified. The proposition that failure by the defendant to call evidence lessens the burden on the plaintiff to make out his case on a balance of probabilities as propounded in Karugi & Another v. Kabiya & 3 Others (supra) is totally different from the proposition advanced by the appellant in this appeal, namely that the failure by the defendant to call evidence invariably entitles the plaintiff to judgement, irrespective of the quality and credibility of the evidence that the plaintiff has presented. In our view the latter proposition has no sound legal basis.”

25. In view of the above, it goes without saying that the appellant still had a duty to prove his claim as prayed in his plaint despite failure on the part of the respondent to call evidence. His argument that the burden of proof shifted simply because the defence did not call evidence is unfounded in law.

26. A careful interrogation of the appellant’s arguments reveals that the appellant is basically discontented with the reduction of his award by the learned Judge. It behoves the appellant however, to demonstrate how the learned Judge erred in arriving at his conclusions and that such error violated the law and was against the weight of the evidence before him.

Ultimately, we are not persuaded that the learned Judge erred in arriving at the decision now impugned. No basis has been laid to justify our interference in learned Judge’s decision. We find this appeal devoid of merit and the same is hereby dismissed with orders that each party bears its own costs.

Delivered and dated at Nairobi this 29thday of January, 2021.

R. N. NAMBUYE

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JUDGE OF APPEAL

W. KARANJA

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JUDGE OF APPEAL

K. M’INOTI

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JUDGE OF APPEAL

I certify that this is a true copy of the original.

Signed

DEPUTY REGISTRAR