Central Bank of Kenya v Davies Kivieko Muteti [2009] KECA 367 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a Kshs.219,813 gratuity award because it was never pleaded or promised in the employee's contract.
What this practically means
#Executive summary
#Key legal issues
#Whether gratuity not pleaded and not in the contract of employment could be awarded
It could not. Gratuity was never pleaded, never mentioned in evidence, and was not a benefit in the respondent's letter of appointment, confirmation or promotion; the superior court erred in equating a pleaded severance-type claim with gratuity.
The court examined the appointment, confirmation, revised terms and promotion letters and found no gratuity entitlement. The word gratuity never featured in the pleadings. Rule 6.23 is a rule of general application that strips an employee only of benefits payable under his own contract, so it did not create a gratuity entitlement where none existed.
Whether the pleaded claim for dues of 15 days pay per year over 11 years was severance pay
Yes. The court deduced that the claim in the plaint was severance pay, which was only available upon redundancy under the repealed Employment Act, Cap 226, and could not be awarded here.
The claim of Kshs.219,813/= at 15 days pay per completed year tracked the statutory severance pay formula introduced by Act No. 6 of 1994 into the Employment Act. As the respondent was dismissed, not declared redundant, neither gratuity nor severance pay was due.
Correctness of the other heads of the superior court's award
The dismissal of the malicious prosecution claim and the awards for pay in lieu of notice, unpaid salary and pro-rata leave were correct and were left undisturbed.
The court expressly endorsed the Commissioner of Assize's findings on malicious prosecution and the contractual claims for three months' notice pay, salary for March and April 1996 and pro-rata leave, stating those grounds of appeal would have been dismissed had they been argued.
Legal principles established
#- A trial court may only pronounce judgment on issues arising from the pleadings or as framed by the parties; a claim not pleaded and not proved cannot be awarded.
- An employee dismissed under a general disciplinary rule (Rule 6.23) loses only benefits payable to him under his own contract of service; the rule does not create entitlements to payments such as gratuity absent a contractual foundation.
- Severance pay under the repealed Employment Act was payable only upon a declaration of redundancy and could not be awarded on a wrongful dismissal claim.
Court orders
#- 1.The award of Kshs.219,813/= purportedly awarded as gratuity is set aside
- 2.The rest of the superior court judgment stands
- 3.The claim payable by the appellant to the respondent is Kshs.206,826/65 with interest at court rates, for which judgment stands
- 4.No order as to the costs of the appeal
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.C. No. 355 of 2001
- Jurisdiction invoked
- First appeal to the Court of Appeal under the applicable appellate statutory framework (judgment and decree of the High Court)
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.
- Rotich v Director General National Environment Management Authority & another (Environment and Planning Appeal E002 of 2025) [2026] KEELC 1672 (KLR)[2026] KEELC 1672 (KLR)19 Mar 2026
- Nyamai v David Engineering Limited (Cause 2040 of 2016) [2022] KEELRC 33 (KLR)[2022] KEELRC 33 (KLR)26 Apr 2022
Cite this brief
#Cite this brief
Caselaw, "Central Bank of Kenya v Davies Kivieko Muteti [2009] KECA 367 (KLR)", Case Analysis (2009). Civil Appeal 82 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/367/eng@2009-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.