On provision of sufficient evidence to prove any constitutional violations: The Case of Charles v Cheto (Civil Appeal E046 of 2022) [2025] KECA 784 (KLR)

Background

The appellant filed a constitutional petition at the High Court, alleging violations of his constitutional rights.

The High Court dismissed the petition, finding no sufficient evidence of constitutional breaches.

The appellant appealed to the Court of Appeal, challenging the High Court’s findings and asserting that his rights had indeed been violated.

Facts: 

The respondent, Joash Shisia Cheto, was employed as a gardener by the appellant, Thepot Patrick Charles, at his residence in Malindi. On 7 February 2019, while performing his duties, a tree branch fell on Cheto, resulting in a severe injury to his left hand. The incident was reported to the Director of Occupational Safety and Health Services (DOSHS) on 5 September 2019. 

Following the statutory procedures, the Director assessed the compensation payable to Cheto at Kshs. 624,000. The appellant did not object to this assessment. Subsequently, Cheto demanded payment through a letter dated 26 January 2021, but the appellant failed to settle the amount. As a result, Cheto filed a suit in the Employment and Labour Relations Court (ELRC) at Malindi.

Issues for determination:

Whether the High Court erred in dismissing the appellant’s constitutional petition.

Whether the appellant established a prima facie case of constitutional rights violations. 

ELRC Ruling

On 7 March 2022, Justice B.O.M. Manani of the ELRC ruled in favor of Cheto, ordering the appellant to pay the assessed compensation of Kshs. 624,000, along with accrued interest from 5 September 2019 until full payment, and the costs of the suit.

Court of Appeal Decision

The appellant appealed the ELRC decision, but the Court of Appeal upheld the ruling. The appellate judges—SG Kairu, KI Laibuta, and GWN Macharia—dismissed the appeal and ordered the appellant to bear the costs. The judgment reinforced the enforceability of compensation awards under WIBA and emphasized the importance of adhering to statutory procedures in occupational injury claims. 

The Court of Appeal dismissed the appeal.

It upheld the High Court’s decision, concluding that the appellant had not provided sufficient evidence to prove any constitutional violations.

Reasoning:

The Court emphasized that constitutional claims must be substantiated with clear evidence.

Mere allegations, without demonstrating specific breaches and how they occurred, are insufficient.

The appellant failed to meet the evidentiary threshold required in constitutional litigation.

 Legal Principles Affirmed:

The burden of proof in constitutional claims lies on the claimant.

Courts will not entertain constitutional petitions based on unsubstantiated allegations.

Judicial discretion will not be interfered with unless there is a clear misapprehension or misapplication of the law or evidence.

Implications/Legal Significance of the case:

This case underscores the legal obligation of employers to compensate employees for work-related injuries as mandated by WIBA. 

It also highlights the role of the Director of Occupational Safety and Health Services in assessing and enforcing such compensation. 

Employers are reminded of the necessity to comply with statutory requirements and the potential legal consequences of failing to do so.

Access the full judgment here: Charles v Cheto (Civil Appeal E046 of 2022) [2025] KECA 784.

On unlawful termination of employment: The case of Abdulah Firimbi t/a Sinai Hotel v Imungu (Appeal E131 of 2024) [2025] KEELRC 1283 (KLR)

Court: Employment and Labour Relations Court (ELRC), Nairobi
Judge: Hon. Justice H. Namisi
Date: January 23, 2025
Citation: [2025] KEELRC 1283 (KLR)

Background:
Abdulah Firimbi, operating as Sinai Hotel, filed a claim against Imungu for alleged unlawful termination of employment. The claimant sought compensation for lost earnings, unpaid dues, and damages for the termination.

Issues:

1. Whether the termination of the claimant's employment was lawful.

2. Whether the claimant is entitled to the reliefs sought.

Findings:

• Unlawful Termination: The court found that the claimant's employment was terminated without due process, violating the provisions of the Employment Act.

• Entitlement to Reliefs: The claimant was awarded compensation for the unlawful termination, including unpaid dues and damages.

Outcome:
The court ruled in favor of the claimant, awarding compensation for the unlawful termination of employment.

Legal Principles:

• Employers must adhere to the due process outlined in the Employment Act when terminating an employee's contract.

• Employees are entitled to compensation for unlawful termination, including unpaid dues and damages.

Citation & Case Download Link:
Abdulah Firimbi t/a Sinai Hotel v Imungu (Appeal E131 of 2024) [2025] KEELRC 1283 (KLR)

What constitutes a binding contract: The case of Uba Kenya Bank Limited v. Top Image Africa Limited (Civil Appeal E162 of 2022) [2025] KEHC 254 (KLR)

Case Summary: UBA Kenya Bank Limited v. Top Image Africa Limited (Civil Appeal E162 of 2022) [2025] KEHC 254 (KLR)

Court: High Court of Kenya at Nairobi (Milimani Commercial Courts)
Judge: Hon. Justice H. Namisi
Date: January 23, 2025
Citation: [2025] KEHC 254 (KLR)

Background:
Top Image Africa Limited (the respondent) sued UBA Kenya Bank Limited (the appellant) for breach of contract, alleging that the bank misled it into converting Nigerian Naira (NGN) to Kenyan Shillings (KES) at an erroneous exchange rate of 0.18% instead of the prevailing rate of 1.18%, resulting in a loss of KES 12,300,000. The trial court found in favor of the respondent, declaring the transaction unconscionable and awarding damages.

Issues on Appeal:

1. Whether the email correspondence between the parties constituted a binding contract.

2. Whether the indicative exchange rate set by the Central Bank of Kenya (CBK) was binding.

3. Whether the respondent proved that the appellant applied a fraudulent exchange rate.

4. Who bore the burden of proof in commercial disputes.

High Court's Findings:

1. Binding Contract via Email: The court held that the email correspondence between the parties, confirming the exchange rate of 0.18%, constituted a legally binding contract.

2. Indicative Exchange Rate: The court clarified that the CBK's indicative exchange rates are not fixed rates but serve as reasonable estimates, and parties are free to negotiate and agree on different rates.

3. Burden of Proof: The respondent failed to prove that the appellant applied a fraudulent exchange rate. The evidence presented was insufficient, as it lacked official CBK rates and relied on unverified online sources.

4. No Breach of Contract: The court found no breach of contract by the appellant, as the agreed-upon exchange rate was honored, and the respondent did not demonstrate any vitiating factors such as fraud or misrepresentation.

Outcome:
The High Court allowed the appeal, set aside the trial court's judgment, and dismissed the respondent's suit with costs to the appellant. Additionally, the appellant was awarded KES 50,000 in costs for the appeal.

Legal Principles:

• Contract Formation: Email correspondence can constitute a binding contract if there is clear agreement on essential terms.

• Indicative Rates: Indicative exchange rates provided by the CBK are not mandatory but serve as guidelines; parties may negotiate different rates.

• Burden of Proof: In commercial disputes, the party making an allegation bears the burden of proving it.

• Contract Enforcement: Courts will not rewrite contracts but will enforce them as agreed, barring evidence of vitiating factors.

Citation:
Uba Kenya Bank Limited v. Top Image Africa Limited (Civil Appeal E162 of 2022) [2025] KEHC 254 (KLR)

On Procedural fairness to justify termination in a contract of employment: The Case of Waweru v Optimise Outsourcing Limited (Cause E760 of 2023) [2025] KEELRC 1191 (KLR)

 

PART I:

Legal Brief

Case Title:
John Brian Waweru v. Optimise Outsourcing Limited
Court: Employment and Labour Relations Court at Nairobi
Judge: B. M. A. Onyango
Case No.: Cause No. E760 of 2023
Date of Judgment: April 28, 2025

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Facts:

John Brian Waweru was employed by Optimise Outsourcing Limited as an Assistant Management Accountant from June 6, 2022, earning Kshs. 100,000 per month. After completing his probation, he continued working until August 25, 2023, when he was verbally dismissed without prior notice or a hearing. A formal letter followed on August 31, 2023, citing breach of a consultancy agreement.

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Issues:

1. Whether the termination of the claimant's employment was procedurally and substantively fair.

2. Whether the claimant was entitled to remedies for unfair termination.

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Holding:

The court held that the termination was unfair, citing violation of Sections 41, 43, and 45 of the Employment Act, 2007. The employer failed to provide a valid reason or allow the claimant an opportunity to be heard.

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Decision:

• The court awarded the claimant Kshs. 350,000 (equivalent to 3½ months’ salary) as compensation for unfair termination.

• Ordered issuance of a Certificate of Service.

• Interest on the award at court rates from the date of judgment.

• No order as to costs.

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Legal Principles:

• Procedural fairness requires notice and hearing before termination (Section 41).

• Employers must justify termination with valid reasons (Section 43).

• Unfair termination attracts compensation (Section 49).

PART II

Summarized Case Brief:

The Employment and Labour Relations Court (ELRC) of Kenya delivered a significant judgment on April 28, 2025, in the case of Waweru v. Optimise Outsourcing Limited (Cause E760 of 2023). The court found that the claimant, John Brian Waweru, was unfairly dismissed by his employer, Optimise Outsourcing Limited, and awarded him compensation.

Case Summary:

• Employment Details: Waweru was employed as an Assistant Management Accountant by Optimise Outsourcing Limited, starting on June 6, 2022. His employment letter was dated May 19, 2022, and his monthly salary was Kshs. 100,000. He served a probationary period of six months, ending on November 6, 2022.

• Dismissal: On August 25, 2023, Waweru was verbally informed of his dismissal. He was told that a formal letter detailing the reasons for his dismissal would follow. On August 31, 2023, he received a letter stating that he had breached the terms of his consultancy engagement.

• Legal Claims: Waweru contended that his dismissal violated his constitutional rights under Articles 28 (dignity), 41 (fair labour practices), and 47 (fair administrative action), as well as statutory rights under Sections 41, 43, and 45 of the Employment Act.ogekatimeslaw.blogspot.com

Court's Findings:

• Unfair Termination: The court declared that Waweru's termination was unfair due to procedural deficiencies. Specifically, the employer failed to follow the due process required under the Employment Act, including providing a valid reason for dismissal and an opportunity for the claimant to respond.

• Compensation: The court awarded Waweru compensation equivalent to 3½ months' salary, amounting to Kshs. 350,000.

• Additional Orders: The employer was ordered to issue a Certificate of Service to Waweru. The court did not make any orders regarding costs.

• Interest: Interest on the awarded amount was allowed at the court rate, from the date of judgment.

Significance:

This judgment underscores the importance of adhering to due process in employment terminations. Employers are reminded of their obligation to ensure that dismissals are conducted fairly and in accordance with the law, safeguarding employees' constitutional and statutory rights.

On the importance of properly idntifying necessary parties in legal proceedings: The Case of Boniface Omondi v Mathare Youth Sports Association & Another [2021] KEELRC 671 (KLR)

 The case of Boniface Omondi v Mathare Youth Sports Association & Another [2021] KEELRC 671 (KLR), decided on 29 September 2021, involved an application by Bob Munro, the second respondent, seeking to be struck out from the suit on grounds of misjoinder.​See the Case

Background

Boniface Omondi, the claimant, was employed by the Mathare Youth Sports Association (MYSA), the first respondent. He alleged that his dismissal was instigated by Bob Munro, the second respondent, who was the Chairman of MYSA's Board of Trustees. Omondi contended that Munro played a role in initiating the disciplinary process that led to his termination.​Kenya Law

Application by Bob Munro

Bob Munro filed a Notice of Motion application dated 30 November 2018, seeking the following orders:​

1. That his name be struck off from the claim for misjoinder.
2. That the claim against him be struck off for being frivolous, vexatious, and an abuse of the court process.
3. That costs of the application be provided for.​

Munro argued that he was not involved in the day-to-day management of MYSA and had no role in the recruitment, management, or termination of employee contracts. He asserted that the claimant's employment contract was between Omondi and MYSA, and there was no privity of contract between him and Omondi.​Read More

Claimant's Response

Omondi opposed the application, asserting that Munro was responsible for instigating the disciplinary process against him. He claimed that Munro's actions led to his unfair dismissal and that Munro should be held personally liable for the alleged defamation. Omondi further argued that Munro's presence in the suit was necessary for the court to effectually and completely adjudicate upon and settle all questions involved in the matter.​Kenya Law

Court's Ruling

The Employment and Labour Relations Court, in its ruling, considered the following:

• Misjoinder of Parties: The court examined whether Munro was a necessary party to the suit. It found that other than being mentioned in the introductory part of the claim, Munro was not implicated in the allegations or the reliefs sought by the claimant.​Kenya Law
• Role of Bob Munro: The court noted that Munro's role was limited to receiving a complaint against Omondi and forwarding it to MYSA's Executive Director and Human Resource Manager. There was no evidence to suggest that Munro was involved in the recruitment, management, or termination of Omondi's employment.​Read More
• Legal Precedents: The court referred to legal precedents, including the case of Provincial Construction Company & Another v Attorney General [1991] eKLR, which emphasized that only persons who negotiate and sign a contract and are privy to it are entitled to enforce its terms.​Read more

Conclusion

The court concluded that Bob Munro was not a necessary party to the suit and granted his application to be struck out from the claim. The claimant was ordered to bear the costs of the application.​Read More

This case underscores the importance of properly identifying necessary parties in legal proceedings and the court's discretion to strike out parties who are not essential to the adjudication of the dispute.​