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Court of AppealPartially AllowedCivil Appeal 135 of 1994· [1997] KECA 100 (KLR)

Shimba Tourist Services Limited v Wilson Mise Kigani

Court of Appeal of Kenya
29 September 1997
RKR.O. KwachAAA.M. AkiwumiGPG.S. Pall
236 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that wrongfully dismissed employees can only recover notice pay or salary in lieu, not general damages.

What this practically means

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Executive summary

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This was a second appeal by Shimba Tourist Services Limited against the decision of the Resident Magistrate's Court at Nairobi, which had awarded the respondent, Wilson Mise Kigani, Shs.85,000/- as general damages for wrongful dismissal. The appeal reached the Court of Appeal from the High Court at Nairobi (Dugdale J), whose judgment of 21st February 1994 in H.C.C.C. No. 114 of 1992 was the subject of the appeal. In a short judgment of the court delivered by a bench of Kwach, Akiwumi and Pall, JJAs, the court restated the settled measure of damages for wrongful dismissal: an employee is entitled only to the amount the employer would have been obliged to pay had the contract been ended in accordance with its terms, by proper notice or salary in lieu, and general damages are not recoverable. Applying that principle, the court allowed the appeal, set aside the judgment and decree of the Resident Magistrate's Court, substituted an order dismissing the respondent's claim with costs, and directed that money deposited in African Banking Corporation be paid out to the appellant. The judgment binds subordinate courts on the measure of damages in wrongful dismissal claims: general damages are not an available head of loss where termination is wrongful but contractual.

Key legal issues

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01

Measure of damages for wrongful dismissal

Holding

Damages for wrongful dismissal are confined to the amount payable on contractual termination by proper notice or salary in lieu; general damages are not recoverable.

Reasoning

The court stated the law as well settled: an employee wrongfully dismissed recovers only what the employer would have been obliged to pay had it terminated the contract in accordance with its terms, i.e. proper notice or salary in lieu. The Resident Magistrate's award of Shs.85,000/- as general damages departed from this measure and could not stand on second appeal.

p. 1

Legal principles established

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  • In wrongful dismissal, damages are limited to what the employer would have been obliged to pay on lawful termination by proper notice or salary in lieu; general damages are not recoverable.

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment and decree of the Resident Magistrate's Court set aside
  3. 3.Substituted therefor an order dismissing the respondent's claim
  4. 4.Costs of the claim awarded to the appellant
  5. 5.Money deposited in African Banking Corporation to be paid out to the appellant
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 114 of 1992
Jurisdiction invoked
Second appeal from the Resident Magistrate's Court decision, heard on appeal from the High Court (statutory second-appeal jurisdiction; no specific constitutional or statutory provision quoted in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Shimba Tourist Services Limited v Wilson Mise Kigani", Case Analysis (1997). Civil Appeal 135 of 1994. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/100/eng@1997-09-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.