https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1502

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **APPEALS DIVISION** **APPEAL NO. E109 OF 2024** **(consolidated with Appeal No. E050 of 2025)** **STEEL MOULD ENGINEERING ENTERPRISES LIMITED………………………………………………………...APPELLANT** **-VERSUS-** **ADAMS OUMA OMUGA………………………………… RESPONDENT** **(Being an appeal from the Judgment of the Chief Magistrate Court at Nairobi (Honourable D.O. Mbeja) delivered on 11th day of March, 2024 in CMCC No. 493 of 2015*)*** **JUDGMENT** 1. Through the Memorandum of Appeal dated 26th April, 2024, the Appellant appeals against whole of the Judgment of Honourable Honourable D.O. Mbeja delivered on 11th day of March, 2024 and ruling delivered on 20th February, 2025 in CMCC No. 493 of 2015 on grounds inter alia: 2. The learned trial magistrate acted in error when he failed, as he did, to properly evaluate the evidence on record on whether it was legally or otherwise possible to hold the appellant liable for matters that transpired long before its incorporation. 3. The learned trial magistrate errored in law and fact when he failed, as he did, to hold that the Appellant court not have failed in a duty of care towards the Respondent in the year 2011 (sic) whereas the evidence on record shows that the Appellant was incorporated and came to being on 7th April 2014. 4. The learned trial magistrate errored in law and fact when he held, as he did, that the court was **not** satisfied that the Respondent had established a prima facie case against the Appellant on the balance of probabilities but still went ahead to finally find for the Respondent (**who had failed the probability test**) against the Appellant. 5. The learned trial magistrate acted in error when he failed, as he did, to find that the consent dated 8th May 2024 was illegal having been procured through coercion and undue influence and contrary to the policy of the court. 6. The learned trial magistrate errored in law and fact when he failed, as he did, to hold that the said consent was irregular as the same was executed by a party who had an Advocate properly retained on the record. 7. The learned trial magistrate errored in law and fact when he held, as he did, that the Respondent and/or his agents did not coerce of pressure the applicant to act personally in signing the impugned consent. 1. The Appellant consequently prayed that the judgment and ruling by learned Magistrate delivered on 11th day of March, 2024 and ruling delivered on 20th February, 2025 in CMCC No. 493 of 2015, be aside and replaced with the judgment of this honourable court that both appeals be allowed and the claimants suit in the lower court be dismissed and the ruling in the application dated 3rd October, 2024 be set aside and replaced with an order allowing the same with costs of both appeals to the appellant. 2. The Appeal was disposed of by written submissions. **APPELLANT’S SUBMISSIONS** 1. The Appellant’s Advocate, Mr. Ochieng’ submitted among others that the learned trial magistrate did not take into consideration the fact that the respondent was allegedly injured more than a year before the incorporation of the appellant company. Therefore, the respondent could not have possibly been employed by the appellant who was not in existence when the alleged accident took place. In this respect, counsel relied on the case of **Kedenge v. Quest Works Limited [2023] KEELRC 1886 (KLR)** and the case of **Kepong Prospecting Ltd v. SK Jagatheesan & Another [1968]AC 810** where it was held that no services can be rendered to a non-existent company nor can a company bind itself to pay for the services claimed to have been rendered before its incorporation. 2. Counsel therefore submitted that the respondent having failed to establish a prima facie case against the appellant, there was no need to consider the balance of convenience. 3. Regarding the consent, counsel submitted that the same was executed by counsel for the respondent and the auctioneer who was not a party to the suit and without the involvement of the appellant’s counsel who happened to be upcountry at the material time and therefore not reachable. 4. According to Mr. Ochieng’ the respondent’s auctioneers visited the appellant’s premises with a view to card away its attachable assets for sale at a public auction in execution of the decree of the trial court issued on 5th April, 2024 and caused the director of the appellant to execute a consent for the payment of the decretal sum to avoid the appellant’s goods from being carted away. The appellant’s director was also compelled to make payment of KShs. 145,000/- to the respondent’s advocate. In support of the claim for coercion into the consent, counsel relied on the case of **Constant Odido Orabi vs. Wilfred Okuku Mubadi [2021]eKLR** and the definition of coercion as contained in the **Black’s Law Dictionary**. Counsel further relied on the case of **Francis Kamau v. Leonard Kuru [2020] eKLR.** 5. In the above regard, counsel submitted that the funds paid to the respondent’s advocate ought to be ordered by this court to be refunded to the appellant since the same were obtained through duress. 6. Counsel for the respondent, Mrs. Owino on her part submitted that the appellant’s director in his testimony and cross examination admitted that before registering the appellant in 2014, he worked in partnership with one Dalmas Ogola and David Alieny before 2014. Counsel further submitted that at paragraph 2 of the application to set aside the *ex parte* judgment of the lower court dated 3rd April, 2024, the appellant admitted knowing the respondent and working with him at the time of injury in 2012 when they were still running as partnership. 7. On the duty to provide a safe place and system of work and liability for ensuing injury, Counsel relied on the case of **Mumias Sugar Company Limited vs. Charles Namatiti C.A 151 of 1987** and the case of Makala **Mailu v. Nyali Golf & County Club [1989] KECA 13.** 8. Concerning the disputed consent, counsel submitted that whereas the appellant admitted signing the same, they turn around saying they were coerced into signing it by the auctioneers and claimed he was frogmarched to the auctioneer’s office to sign the same. Counsel denied these allegations and stated that the auctioneers had earlier proclaimed the appellant’s goods and went later on to collect the same in compliance with a lawful warrant and therefore had no reason to coerce the appellant’s director. Counsel further submitted that despite the allegations of coercion, the appellant had not reported any such coercion to any police station hence the allegation of coercion was an afterthought. 9. Mrs. Owino further submitted that if indeed there was duress and coercion, the appellant’s all the time to stop the payment of Kshs. 100,000/- which was made pursuant to the consent and as part payment of the decretal sum. In this regard counsel relied on among others, the case of **Sang’ vs. NCBA Bank PLC and Another [2024] KEHC 4823 (KLR) quoting the case of Board of Trustees NSSF vs. Michael Mwalo [2015] eKLR,** where it was stated that “…a court of law will not interfere with a consent judgment except in circumstances such as would provide a good ground for varying or rescinding a contract between parties. To impeach a consent order or a consent judgment, it must be shown that it was obtained by fraud, or collusion or by an agreement contrary to the policy of the court.” **DETERMINATION** 1. The court has considered the grounds in the Memorandum of Appeal, the Record of Appeal and the submissions filed by the parties herein and authorities relied on and would as usual state as follows that it is now settled law that the duty of the first appellate court is to re-evaluate the evidence in the subordinate court both on points of law and facts and come up with its own findings and conclusions as was held in **Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR,** where it was stated that:- *“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”* 1. The Judgment of the trial court was that the respondent’s claim was allowed and the trial court awarded him Kshs. 200,000/- as general damages for pain and suffering and Kshs. 4000/- as special damages. 2. Briefly and the respondent in this appeal, filed a claim in the lower court seeking compensation for damages for injuries he claimed he suffered in the cause of his employment. The appellant was served with the claim but failed to either enter appearance or file a defence. The respondent requested for judgment in default of appearance and defence which was allowed and the matter proceeded for formal proof. As stated, the trial court after hearing the matter, allowed the respondent’s claim and awarded him compensation for injuries he sustained. When the respondent attempted to execute the judgment of the court, the appellant moved the trial court (Hon. Muholi) who on 16th February, 2017 granted a stay of execution and later, on 30th May, 2017 set aside the *ex parte* judgment and ordered a fresh trial on condition that the appellant pays Kshs. 10,000/- as throw away costs. This was complied with; the appellant filed a defence and the matter proceeded afresh before Hon. Mbeja who delivered the judgment subject of the appeal. As stated above, the trial court awarded the respondent Kshs. 200,000/- as general damages for pain and suffering and Kshs. 4000/- as special damages. The Court further granted the appellant stay of execution for 30 days. The appellant did not take any action in the interim until the respondent commenced execution after the expiry of the 30 days stay of execution. 3. The respondent instructed Cresent Auctioneers to execute the judgment and on 20th April, 2024 proclaimed the appellant’s goods in execution of the decree. On 9th May, 2024, the appellant filed an application under certificate of urgency seeking stay of execution pending the hearing and determination of the appeal. According to counsel for the respondent, the notice of appeal was not served on them. 4. The appellant further sought the setting aside of the consent between the parties and settling of the decretal sum by instalments but Hon. Mbeja dismissed the application after hearing on 20th February, 2024. The dismissal order is subject of appeal no. E050 of 2024 consolidated with this appeal. 5. The gravamen of the two appeals seems to me to be on the issue whether there was employer-employee relationship between the appellant and the respondent and second, whether the agreement to settle the decretal sum signed by the appellant’s director could be set aside as against the appellant on grounds that the same was obtained through coercion and duress. 6. As stated earlier, it is now more or less settled law that the duty of the first appellate court is to re-evaluate the evidence in the subordinate court both on points of law and facts and come up with its own findings and conclusions as was held in **Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR,** cited earlier. 7. On the issue of whether the appellant was the employer of the respondent, the Court has carefully scrutinised the record, especially the pleadings and the witness statement by one Humphrey Gaya dated 2nd June, 2017 and noted that whereas the appellant alleges that the respondent was never its employee in 2012 when he claimed to have been injured, Mr. Gaya does not deny knowledge of the respondent. He admitted in his evidence before the trial court, to dealing with the respondent but on issues before the rent tribunal. The Court further notes that whereas the appellant claimed that it was incorporated on 7th April, 2014 and further that Mr. Gaya was involved in the company (appellant) as director, he did not produce any evidence before the trial court showing the fact of his appointment as such and also the list of shareholders of the company to completely disengage with the respondent’s allegation that the appellant was its employee. Mr. Gaya further admitted in his evidence that one Mr. Dalmas Ogolla and David Alieny were his partners before 2012 but did not elaborate much on the nature and duration of such partnership. 8. From the pleadings and witness statement by Mr. Gaya, the court after carefully scrutinising the same notices that the issue of when the appellant was incorporated did not come out clearly. The issue though important could only be gleaned from the statement of defence and Mr. Gaya’s witness statement. However, it is only relied on firmly in his oral evidence in Court and submissions by Counsel. It is trite law that a party is bound by their pleadings and prior recorded statements and any deviation from the same is usually considered by the court as an afterthought. 9. If it be true that the respondent was not an employee of the appellant, or there was no relationship in the nature of employment between himself and the appellant’s predecessor in title, it becomes difficult to understand why the appellant chose to set aside a judgment that did not concern it and proceeded to defend the same but only after execution had commenced instead of taking objection proceedings that the decree sought to be executed was not in relation to it. 10. Further, it becomes inconceivable that the appellant proceeded to set aside the consent on the grounds that the same was procured through coercion and duress and not on the ground that it was not the correct judgment debtor. Further, as rightly contended by the respondent’s counsel, the auctioneers proclaimed the appellant’s goods and gave them ample time to either settle the decretal sum or as the Court has noted, take objection proceedings. When the auctioneer came to collect the proclaimed items and after agreeing and signing for instalment payment they turn around to claim they were coerced. This is unbelievable. 11. Proof in civil claims is on a balance of probability and all that a claimant needs to prove is that what he or she is alleging is more probably the correct position than what the defendant is proffering. It is the court’s view that both the courts’ *aquo r*easonably believed the respondent’s allegations and came to a just finding based on the evidence presented before them. 12. The appellant did not reasonably discharge the legal burden placed upon it after the respondent had discharged its evidentiary burden by reasonably demonstrating that it was more probably than not that the appellant and or its predecessor in title employed him and that he was injured in the course of his employment as such. 13. **Both appeals are therefore found without merit and are hereby dismissed with costs** 14. **It is so ordered.** **Dated at Nairobi this 29th day of May, 2026** **Delivered virtually this 29th day of May, 2026** **Abuodha Nelson Jorum** **Presiding Judge-Appeals Division**