Central Bank of Kenya v Martin King’ori [2009] KECA 313 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether, in a claim for wrongful termination of employment, the respondent was entitled only to salary for the contractual period of notice
- 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
#Pleading and proof of special damages
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.
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.
Measure of damages for wrongful termination
General damages beyond the notice-period salary are not available for wrongful termination; the measure is the wages for the notice period, already paid.
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.
Burden of proof of the plaintiff's claim
The trial judge erred in shifting the burden of proving the gratuity claim to the bank, which had offered no evidence.
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.
Legal principles established
#- 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
#- 1.Appeal allowed
- 2.Judgment of the superior court set aside and substituted with an order dismissing the respondent's suit
- 3.Each party to bear its own costs both in the appeal and in the court below
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
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
Costs
Each party shall bear its own costs, both here and in the court below.
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.
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.
That right which is a statutory right, cannot be taken away by a mere stipulation in Staff Rules and Regulations.
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.
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.
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Nkoroi v Muchina (Civil Appeal E099 of 2022) [2025] KECA 965 (KLR)[2025] KECA 965 (KLR)9 May 2025applied
- Tana and Athi Rivers Development Authority v Joseph Mbindyo & 3 others [2013] KECA 242 (KLR)[2013] KECA 242 (KLR)3 Oct 2013followed
Cite this brief
#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.