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Court of AppealPartially AllowedCivil Appeal 334 of 2002

Central Bank of Kenya v Martin King’ori [2009] KECA 313 (KLR)

Court of Appeal of Kenya
29 May 2009
3,901 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal held that wrongly dismissed employees can only recover notice-period salary unless they specifically plead and prove extra benefits.

What this practically means

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Executive summary

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The respondent, a Telephone Supervisor employed by the Central Bank of Kenya from 1981, was dismissed on 4th August 1993 for alleged gross misconduct and paid three months' basic salary in lieu of notice. Githinji, J found the dismissal wrongful and awarded him general damages equivalent to six months' basic salary plus terminal benefits, pension refund, leave pay and gratuity, granting liberty to apply on the quantum of the latter items. The bank appealed on three grounds: failure to plead and prove the special damages; the entitlement to no more than notice-period salary; and the absence of any legal basis for general damages for breach of a contract of employment. The Court of Appeal allowed the appeal in full. It held that the claims under paragraph 6 of the plaint were in the nature of special damages which, per Coast Bus Service and Charles C. Sande, must be specifically pleaded and strictly proved; particulars were never supplied and the gratuity figure was unproved, and the trial judge misdirected himself in shifting the burden of proof to the bank. On damages, the court found the trial judge's distinction of the notice-period principle untenable, as it would produce servitude. Following Central Bank of Kenya v Nkabu and Rift Valley Textiles, and applying section 14(5) of the Employment Act, it held the employer had a reciprocal statutory right to terminate on notice, so the respondent, already paid three months' salary in lieu, was entitled to nothing more. The judgment of the High Court was set aside and the respondent's suit dismissed, with each party bearing its own costs in both courts.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether terminal benefits, refund of pension contributions, payment for leave due and gratuity were claimable where particulars were not specifically pleaded and no evidence was led in proof thereof
  2. 2.Whether, in a claim for wrongful termination of employment, the respondent was entitled only to salary for the contractual period of notice
  3. 3.Whether general damages were available for breach of a contract of employment where the employer had no contractual right to terminate on notice

Key legal issues

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01

Pleading and proof of special damages

Holding

Terminal benefits, pension refund, leave pay and gratuity were claims in special damages requiring specific pleading and strict proof; failing which they are not grantable.

Reasoning

The plaint averred only that particulars would be supplied at hearing, which was never done save for one unproved gratuity figure. The court restated the trite rule from Coast Bus Service and Charles C. Sande that special damages must be pleaded with particularity and, if unknown, particulars must be supplied by amendment before strict proof. Procedural aids such as interrogatories, discovery and notice to produce were available to the respondent but unused.

p. 4
02

Measure of damages for wrongful termination

Holding

General damages beyond the notice-period salary are not available for wrongful termination; the measure is the wages for the notice period, already paid.

Reasoning

The trial judge distinguished Rift Valley Textiles and Nkabu on the ground that the staff rules gave the bank no right to terminate on notice, leading to the absurd result of perpetual employment amounting to servitude. Following Central Bank of Kenya v Nkabu and Rift Valley Textiles, and applying section 14(5) of the Employment Act, the court held that the employer has a reciprocal statutory right to terminate on notice, limiting damages to the notice period.

p. 6
03

Burden of proof of the plaintiff's claim

Holding

The trial judge erred in shifting the burden of proving the gratuity claim to the bank, which had offered no evidence.

Reasoning

The bank offered no evidence at trial and merely submitted that the respondent had not discharged his onus. The trial judge, having found the gratuity figure unsupported, nonetheless placed the onus of proof on the bank. The Court of Appeal held that a defendant carries no onus of proving the plaintiff's claim, and that the misdirection vitiated the finding on gratuity, which was in any event unproved.

p. 4

Legal principles established

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  • Special damages must be pleaded with particularity and strictly proved; particulars cannot be left to be supplied at trial unless by amendment.
  • Damages for wrongful termination of a contract of employment are limited to the salary for the contractual or statutory period of notice, even where the employer's contract contains no express right to terminate on notice.
  • Under section 14(5) of the Employment Act, a contract terminable by the employee on notice is terminable by the employer on notice as a reciprocal statutory right, which cannot be taken away by staff rules and regulations.
  • A defendant bears no onus of proving the plaintiff's claim; shifting the burden of proof to a party that offered no evidence is a misdirection.

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment of the superior court set aside and substituted with an order dismissing the respondent's suit
  3. 3.Each party to bear its own costs both in the appeal and in the court below

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 928 of 1994
Jurisdiction invoked
First appeal to the Court of Appeal under the Constitution/Appellate Jurisdiction Act (not expressly stated in the judgment)

Relief refused

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Terminal benefits, refund of pension contributions, payment for leave due and gratuity claimed under paragraph 6 of the plaint

These were in the nature of special damages which must be specifically pleaded and strictly proved; particulars were never supplied and the gratuity figure was not proved

p. 4

General damages for wrongful termination of employment in excess of salary in lieu of notice

Damages for wrongful termination are equivalent to the notice period; the respondent had already been paid three months' salary in lieu of notice

p. 6

Costs

Each party shall bear its own costs, both here and in the court below.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Special damages must be pleaded with as much particularity as circumstances permit, and in this connection, it is not enough to simply aver in the plaint as was done in this case, that the particulars of special damages were to be supplied at the time of trial.
p. 4Pleading of special damages
That right which is a statutory right, cannot be taken away by a mere stipulation in Staff Rules and Regulations.
p. 6Statutory right to terminate employment on notice
It would also mean that, although the employee can voluntarily walk out of their relationship, the employer shall remain shackled to the employee for as long as no misconduct or gross misconduct can be established. We do not think the law would countenance such relationship as it would be one of servitude.
p. 5Rejection of security-of-tenure argument in employment
We set aside the judgment of the superior court and substitute therefore an order dismissing the respondent's suit. In view of the circumstances of the case, liability, the order that commends itself to us on costs is that each party shall bear its own costs, both here and in the court below.
p. 7Final orders and costs

Issues in the judgment

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minor

The judgment reproduces a passage from Central Bank of Kenya v Nkabu in which the Employment Act section is quoted within the quoted material; some quoted text attributes reasoning to the Nkabu court that is itself quotation, making attribution layered

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Central Bank of Kenya v Martin King’ori [2009] KECA 313 (KLR)", Case Analysis (2009). Civil Appeal 334 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/313/eng@2009-05-29

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