Aloyce Mariera v Kenya Bus Services (Msa) Ltd [1987] KECA 84 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that an employer cannot prove theft to justify summary dismissal by mere accusation without actual evidence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial judge could sustain a finding that the plaintiff stole Kshs 21 after disregarding the evidence of September 18, 1976
- 2.Whether the plaintiff's evidence on the contract and the cards was wrongly shut out
- 3.Whether the plaintiff had to plead the written contract before invoking section 14 of the Employment Act
- 4.Whether the plaintiff should be deprived of costs for inadequate presentation of his case
Key legal issues
#Standard of proof of theft in a civil wrongful dismissal claim
The judge could not sustain a finding of theft of Kshs 21 in the absence of evidence that the plaintiff was charged, tried and convicted, and where the evidence of the relevant incident had been disregarded; an allegation of theft is not proof.
The judge disregarded the September 18, 1976 evidence yet went on to find the theft of Kshs 21 proved on a balance of probabilities. The majority held this unsustainable: the evidence before the court concerned only a suspicion, based on an altered ticket and shortfalls, with no proof that the defendant was Kshs 21 short on the plaintiff's shift, and unchallenged evidence that the supervisor held the key. The judge also failed to refer to that vital evidence.
First appeal on facts
On a first appeal from trial, the Court of Appeal must reconsider and evaluate the evidence and reach its own conclusions, subject to the disadvantage of not having seen or heard the witnesses.
The court invoked Selle v Associated Motor Boat Co and Peter v Sunday Post for the settled principle governing first appeals: the appellate court re-evaluates the evidence and is not bound by the trial judge's findings where relevant circumstances were overlooked. The judge had failed to consider the unchallenged evidence about the lock key held by the supervisor, so his conclusion was not reached after full consideration of the evidence.
Pleading of statutory provisions and written contracts
It was an error to hold against the plaintiff that he could not refer to the contract merely because the contract was not pleaded, since he was invoking a statutory provision, section 14 of the Employment Act, which need not be pleaded.
Section 14 requires contracts of service of six months or more to be in writing. The majority held that citing a statutory provision is not the same as relying on the terms of a document, so the fact of the contract did not have to be pleaded for the plaintiff to rely on the section. The erroneous ruling was prejudicial to the plaintiff's case. Platt JA dissented, holding contract terms relied upon must be pleaded under Order VI Rule 3 of the Civil Procedure Rules.
Costs where a party's case was poorly presented
A successful plaintiff cannot be deprived of costs on the ground of his advocate's dereliction of duty unless that charge is actually made out; here the advocate did not contribute to the errors, which originated in the judge's handling of the evidence and the Employment Act.
The respondent submitted that if the appeal succeeded there should be no order as to costs because the plaintiff's case was not properly presented below. The court held that such an order requires proof of dereliction of duty by counsel in the High Court, making it difficult for the defence to know what case to meet. That was not established, so the successful plaintiff retained his costs.
Legal principles established
#- On a first appeal from a trial, the appellate court must reconsider and evaluate the evidence and draw its own conclusions, while allowing for the fact that it did not see or hear the witnesses.
- An allegation by a party that another has stolen is no proof of the offence of theft; theft must be proved by evidence, and in civil proceedings on a balance of probability.
- A party may invoke a statutory provision in support of its case without pleading it.
- Contracts of service of six months or more are required by section 14 of the Employment Act to be in writing.
Court orders
#- 1.Appeal allowed with costs
- 2.Assessment of the amount due to the appellant
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Wrote the judgment
Wrote the judgment
Platt JA would have dismissed the appeal. He held that the learned judge was wrong to exclude the evidence of September 18, 1976 and wrong to stray into findings of theft; that at common law, per Boston Deep Sea Fishing Co v Ansell and Halsbury, justification of dismissal can be shown by facts ascertained subsequently or on different grounds from those alleged; that section 17(g) of the Employment Act permits dismissal on reasonable and sufficient suspicion of a criminal offence against the employer's property; and that the falsification of the sweda machine documents justified summary dismissal. He also held the plaint sufficed only for the pleaded claims, and the written contract could not be relied on unpleaded.
For these reasons, I consider that the appeal should be dismissed, albeit for other reasons than those stated by the learned judge. I would dismiss the appeal with costs in this court to the respondent.p. 6
- On appeal from
- High Court of Kenya (Mombasa)
- Jurisdiction invoked
- First appeal to the Court of Appeal under the applicable appellate statutory regime (not expressly cited in the judgment)
Relief refused
#No order as to costs against the plaintiff on account of his advocate's conduct
The respondent sought that costs be withheld on the ground of dereliction of duty by the plaintiff's advocate, but the court found the advocate did not contribute to the errors
Costs
Appeal allowed with costs to the appellant; costs of the appeal against the respondent (Platt JA dissenting would have awarded costs to the respondent).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
An allegation by a party that another has stolen is no proof of the offence of theft.
Therefore, this court must reconsider the evidence, evaluate it and make its own conclusions though bearing in mind that it has neither seen nor heard the witnesses and appropriately allowing for that.
The plaintiff was seeking to cite a statutory provision, and a relevant one at that, which he did not have to plead.
Accordingly, we allow this appeal, with costs and order that there be assessment of the amount due to him.
Issues in the judgment
#The judgment states the plaintiff served at the Likoni ferry 'until October 18, 1976 when he received a letter' of dismissal, but he was appointed toll collector 'In 1978' - internally inconsistent dates (employment from 1954 per the dissent).
The special damages figure is given inconsistently as Kshs 1,516.05 and Kshs 1,516.10.
The provident fund cheque amount appears as both Kshs 2,866.60 and Kshs 2,866.50 in the dissenting opinion.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aloyce Mariera v Kenya Bus Services (Msa) Ltd [1987] KECA 84 (KLR)", Case Analysis (1987). Civil Appeal (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/84/eng@1987-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.