Marshalls (East Africa) Ltd v Jeremiah Kiprop Lagat’at [2009] KECA 353 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed an unlawful dismissal but removed severance pay, since severance is only owed in redundancy cases, not misconduct terminations.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial judge's finding that the dismissal was wrongful and unlawful could be disturbed on appeal
The finding was one of fact supported by evidence and could not be faulted; the dismissal, communicated before the audit report evidencing any cash loss, could only have been based on the employee being found drunk, and the dismissal was procedurally hasty and unfair.
The court re-evaluated the evidence as required on a first appeal. It observed that the audit report reflecting an alleged loss was dated 16th May 1996, after the dismissal letter of 14th May 1996, so the dismissal could not have rested on misappropriation. It also deplored the employer's conduct in forcibly taking the employee from his home for a medical examination, endorsing the trial judge's view that the hasty dismissal showed misconduct on the part of management.
What damages were payable on an unlawful termination
Three months' salary in lieu of notice was appropriate because the letter of appointment contained no clear terms of employment; severance pay was not awardable as this was not a redundancy.
Although the employee's conduct may have been wanting, the letter of appointment contained no clear terms of employment, so the court considered three months' salary in lieu of notice appropriate. It found no legal basis for severance pay since the termination was for alleged misconduct, not redundancy, and accordingly set aside that component of the award.
Legal principles established
#- On a first appeal, the Court of Appeal must re-evaluate the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses.
- An appellate court will not interfere with a finding of fact by the trial court unless it is based on no evidence, on a misapprehension of the evidence, or the judge demonstrably acted on wrong principles.
- An employer may not track down an absent employee to the privacy of his residence and unprocedurally march him to a doctor for medical examination.
- Severance pay is not awardable where the termination is not a redundancy.
Court orders
#- 1.Appeal allowed to the extent that the sum of Shs.328,575/= awarded to the respondent is set aside
- 2.Award of Shs.56,550/= being three months salary in lieu of notice upheld
- 3.Each party to bear its own costs of the appeal and the costs in the superior court
- On appeal from
- High Court of Kenya at Kitale
- H.C.C.C. No. 46 of 1999
- Jurisdiction invoked
- First appeal to the Court of Appeal under the applicable appellate statutory framework (appeal as of right from the High Court in a civil suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Marshalls (East Africa) Ltd v Jeremiah Kiprop Lagat’at [2009] KECA 353 (KLR)", Case Analysis (2009). Civil Appeal 287 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/353/eng@2009-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.