Sharma v Handa T/A K.A. Handa Secondary Schools
The bottom line
#Kenya's Court of Appeal ruled a teacher wrongfully dismissed from a two-year contract deserved pay for his whole unemployment period, raising his award over six-fold.
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 erred in disallowing the claims for travelling expenses and general damages
- 2.Whether the appellant deserted his employment such that summary termination was justified
- 3.Whether there was a contract of appointment for a fixed period of two years despite section 14(1) of the Employment Act requiring written contracts of six months or over
- 4.What salary and house allowance the appellant was entitled to for the period of unemployment
Key legal issues
#Existence and duration of the contract of employment
There was a contract of appointment for two years, evidenced by uncontroverted oral evidence confirmed in writing by the respondent's work permit application.
Although section 14(1) of the Employment Act required contracts of six months or more to be in writing, the court found uncontroverted evidence of a two-year appointment, corroborated by the respondent's written application to the Immigration Department and the Ministry of Education's recommendation. The permit refusal stemmed from the respondent's own withdrawal, so it did not affect the contract.
Desertion and summary termination
The appellant did not desert his employment; there was no reasonable cause for summary termination.
The court agreed with the trial judge's finding that the appellant had not deserted his employment despite the respondent's contrary evidence that he refused to work under a new headmaster. It followed that the verbal termination in January 1986 was without reasonable cause, entitling the appellant to damages for the unemployment period.
Measure of damages for wrongful termination of a fixed-term contract
Damages run to the expiry of the two-year term, less the period after mitigation; the appellant proved 7 months' salary and house allowance.
The appointment would have ended at the expiry of two years barring summary dismissal causes. The appellant mitigated by obtaining new employment in August 1986. The court awarded salary of Shs 28,000/= and house allowance of Shs 10,500/= for 7 months, in addition to the Shs 7,000/= awarded below, totalling Shs 45,500/=.
Travelling expenses and general damages claims
The trial judge did not err in disallowing these claims.
The court reviewed the grounds of appeal on travelling expenses incurred in pursuing the work permit and on general damages for mental anguish and apprehension of arrest, and found no error in the trial judge's disallowance of both heads of claim.
Legal principles established
#- A fixed-term appointment of two years with no termination provision is deemed terminated at the expiry of the two years, save for causes giving rise to summary dismissal.
- An employee who does not desert employment and is summarily terminated without reasonable cause is entitled to salary for the period of unemployment, subject to mitigation.
- An employer's withdrawal of a work permit application, causing refusal of the permit, cannot be relied on against the employee in relation to the contract of employment.
Court orders
#- 1.Appeal allowed
- 2.Judgment sum of Shs 7,000/= substituted with Shs 45,500/= with interest at court rates from the date of the High Court judgment
- 3.Costs of the appeal awarded to the appellant, assessed at Shs 5,000/=
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Meru
- Civil Case No. 42 of 1986
- Jurisdiction invoked
- First appellate jurisdiction over the High Court (implied; no provision expressly cited)
Relief refused
#Travelling expenses of Shs 3,140/= incurred in arranging the work permit
Trial judge did not err in disallowing the claim
General damages for mental anguish and apprehension of possible arrest
Trial judge did not err in disallowing the claim
Costs
Costs of the appeal to the appellant, assessed at Shs 5,000/=; in the High Court each party was ordered to bear its own costs.
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.
We, therefore, allow the appeal and substitute the sum of Shs 7,000/= by the High Court with the sum of Shs 45,500/= as the judgment sum with interest thereon at court rates from the date of the judgment in the High Court.
We also award costs of this appeal to the appellant which we assess at Shs 5,000/=.
the position would be that the appointment would be considered as terminated at the expiry of 2 years – barring of course, causes giving rise to summary dismissal
It is, therefore, evident that there was no reasonable cause for a summary termination.
The fact that the Immigration Department refused to renew the work permit has no bearing on this issue because the refusal was caused by the respondent withdrawing the application.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sharma v Handa T/A K.A. Handa Secondary Schools", Case Analysis (1994). Civil Appeal No. 37 of 1991. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1994/113/eng@1994-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.