Daniel N. Ngunia V K.G.G.C.U. Limited [2000] KECA 339 (KLR)
The bottom line
#Kenya's Court of Appeal upheld the sacking of a credit controller for gross misconduct, ruling serious offences can justify dismissal without a hearing.
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 allegations against the appellant - loss of files of debtors being sued for payment and overpayment to farmers of over Shillings 2.5 million - amounted to gross misconduct justifying summary dismissal
- 2.Whether the appellant was entitled to a hearing under the respondent's Scheme of Service, which applied the rules of natural justice to discipline for misdemeanours, before being dismissed
- 3.Whether the trial Judge's finding that the appellant was guilty of gross misconduct ought to be disturbed on appeal
- 4.Whether the defamation claim (the subject of the abandoned ground five) could have succeeded absent the defence of qualified privilege
Key legal issues
#Whether an employee suspended pending investigations is entitled to a hearing before summary dismissal under a Scheme of Service that applies natural justice to misdemeanours
No. The Scheme of Service provided for natural justice where an employee was to be disciplined for a misdemeanour, but it equally and specifically provided for summary dismissal for gross misconduct. The allegations - loss of files of debtors being sued for payment and overpayment to farmers of over Shillings 2.5 million - were matters directly under the appellant as credit controller and, if true, were serious and amounted to gross misconduct. His prior suspension to facilitate investigations did not detract from that.
The trial Judge found the employment terms were governed by the respondent's Scheme of Service, which required natural justice for discipline over misdemeanours but specifically provided for summary dismissal for gross misconduct. The two allegations were matters directly within the appellant's responsibility as credit controller. The Judge held they could not be designated misdemeanours and entitled the respondent to summarily dismiss. The Court of Appeal agreed that prior suspension to facilitate investigations could not detract from the gravity of the allegations, if true.
Whether the trial Judge's finding that the appellant was guilty of gross misconduct should be disturbed on appeal
No. The Court was not persuaded by counsel for the appellant that the Judge's conclusion was wrong; the Judge was fully justified on the material placed before him to find gross misconduct and an entitlement to dismiss summarily.
Counsel argued the allegations in the suspension letter could only amount to a misdemeanour, which would have engaged the natural justice provisions of the Scheme of Service. The Court reviewed the two allegations and the Judge's treatment of them, noted the respondent's submissions to like effect, and held nothing said on appeal showed the conclusion was wrong. The finding of gross misconduct therefore stood, the appeal necessarily failed, and the Court declined to consider what damages would have been payable.
Whether the defamation claim could have succeeded
The ground on qualified privilege was abandoned; in any event the claim could not have succeeded because the appellant was the only person who testified in support of it.
Ground five, directed at the Judge's holding that the communications were covered by qualified privilege, was abandoned by counsel at the hearing, which the Court viewed as perfectly right. The Court observed from the record that the appellant was the only person who testified in support of his claim, so a defamation claim could not possibly have succeeded even absent the defence of qualified privilege. That left only the grounds concerning the contract of employment.
Legal principles established
#- An employee guilty of gross misconduct may be summarily dismissed without a hearing even where the employer's Scheme of Service applies the rules of natural justice to disciplinary proceedings for misdemeanours; suspension to facilitate investigations does not confer a right to a hearing where the allegations, if true, amount to gross misconduct.
- Trial judges ought to assess damages even when dismissing a claim, so that if the dismissal of the suit is reversed on appeal the appellate court need not remit the matter for assessment.
Court orders
#- 1.The appeal be and is hereby dismissed
- 2.Costs of the appeal to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nakuru
- NKR. H.C.C.C. No. 110 of 1989
- Jurisdiction invoked
- First appeal from the High Court to the Court of Appeal; the judgment invokes no specific constitutional or statutory provision for the appeal.
Relief refused
#Reversal of the dismissal of the appellant's suit and damages for wrongful dismissal
The Court found the appellant guilty of gross misconduct and the respondent entitled to dismiss him summarily; the trial Judge's conclusion was not shown to be wrong.
Damages for defamation
The ground on qualified privilege was abandoned on appeal; in any event the appellant was the only person who testified in support of the claim.
Assessment of damages payable to the appellant
Having found the appeal must fail, the Court held it unnecessary to consider what damages would have been payable.
Costs
This appeal fails and we order that it be and is hereby dismissed with 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.
This appeal fails and we order that it be and is hereby dismissed with costs to the respondent.
That the appellant was first suspended to facilitate investigations into the allegations did not and could not detract from the fact that the allegations, if true, were serious and would amount to gross misconduct entitling the respondent to summarily dismiss the appellant.
We think he was fully justified, on the material placed before him, to conclude as he did that the appellant was guilty of gross misconduct and the respondent was entitled to dismiss him summarily.
However, trial judges ought to assess such damages so that in the event of a successful appeal, this Court does not have to send the matter back to them for an assessment.
Issues in the judgment
#The appellant's initial appears as 'N.' in the cause title but as 'M.' in the body of the judgment.
The cause heading places the court at Nakuru, but the judgment is dated and delivered at Nairobi.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel N. Ngunia V K.G.G.C.U. Limited [2000] KECA 339 (KLR)", Case Analysis (2000). Civil Appeal No. 281 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/339/eng@2000-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.