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Court of AppealDismissedCivil Appeal No. 277 of 2009

Ronald Kimatu Ngati v Ukulima Sacco Society Ltd [2011] KECA 314 (KLR)

Court of Appeal of Kenya
25 March 2011
EGE. M. GithinjiDAD. K. S. AganyanyaJNJ. G. Nyamu
2,170 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a SACCO employee's Kshs.7.4m retirement claim because he couldn't prove he had formally changed his date of birth.

What this practically means

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Executive summary

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The appellant, formerly a permanent and pensionable employee of the respondent SACCO, was retired on 18th March 2002 on reaching mandatory retirement age. He sued in the High Court for Kshs.7,430,406 as general damages for breach of contract, contending that his true birth year was 1953 rather than 1947 and that he was therefore retired prematurely. Khamoni, J. dismissed the suit on 17th July 2008, holding that the plaintiff failed to prove his case on a balance of probabilities, with each party bearing its own costs. On a first appeal before Githinji, Aganyanya and Nyamu, JJ.A., the appellant argued in person that the only issue was his retirement age, which was not provided for in his terms of employment. The respondent maintained that the appellant had never formally notified it of any change of date of birth and had not proved his claim. Applying the settled principles from Selle v Associated Motor Boat Co Ltd, the Court re-evaluated the evidence but declined to interfere with the trial judge's findings of fact. It found that the appellant's employment records from 1989 showed a 1947 birth year, and his letter asserting a 1953 birth date came only four months after the retirement letter, with no reply on record; the Principal Registrar of Persons was not called to testify, and the letter seeking reconsideration of the retirement was not produced. The Court further held that employment issues are contractual and that the special damages claimed had to be specifically pleaded and strictly proved; even on a wrongful termination, the measure of damages would have been salary in lieu of notice. The appeal was dismissed, and as the appellant had been permitted to appeal as a pauper, each party bore its own costs.

Questions the Court framed

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

  1. 1.Whether the appellant proved on a balance of probabilities that he formally and lawfully changed his date of birth from 1947 to 1953 before his retirement
  2. 2.Whether the trial judge's finding that the appellant failed to discharge his burden of proof should be disturbed on appeal
  3. 3.Whether the appellant proved the damages of Kshs.7,430,406 claimed for premature retirement

Key legal issues

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01

Duty of the appellant to formally prove a change of date of birth

Holding

The appellant failed to discharge the burden of proving that he formally and lawfully changed his date of birth from 1947 to 1953 before his retirement letter was served

Reasoning

The records submitted at employment in 1989 indicated the appellant was born in 1947. His letter asserting a birth date of 1953 was written only four months after the retirement letter, no reply is on record, the Principal Registrar was not called to testify, and the letter pleading for reconsideration of the retirement was not produced. The trial judge disbelieved the appellant's evidence on age and this Court would not interfere with that finding.

p. 4
02

Standard of proof and pleading of special damages in employment claims

Holding

Claims arising from employment are contractual and the special damages claimed had to be specifically pleaded and strictly proved; they were not, and in any event the measure of damages for wrongful termination would have been salary in lieu of notice

Reasoning

The trial judge did not reach the merits of damages, and the sums claimed were in the nature of special damages. Following Ouma v Nairobi City Council, employment issues are contractual in nature and the appellant had a duty to strictly prove his pleaded claims. Even on wrongful termination, settled authority caps damages at salary in lieu of notice, not the millions claimed.

p. 4
03

Role of a first appellate court

Holding

A first appeal is by way of retrial; the Court must re-evaluate the evidence but make due allowance for not having seen or heard the witnesses

Reasoning

The Court cited Selle v Associated Motor Boat Co Ltd for the principle that it must reconsider and evaluate the evidence itself and draw its own conclusions, while bearing in mind that it has neither seen nor heard the witnesses, and is not bound by the trial judge's findings of fact where he clearly failed to take account of particular circumstances or probabilities.

p. 2

Legal principles established

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  • On a first appeal, the Court of Appeal must re-evaluate the evidence but will be slow to interfere with findings of fact unless they are based on no evidence, on a misapprehension of the evidence, or on wrong principles
  • Employment claims are contractual in nature and special damages must be specifically pleaded and strictly proved
  • Where a contract of employment is wrongfully terminated, the measure of damages is the salary in lieu of notice

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party will bear his/its own costs of the appeal

The bench

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

EG
majority
DA
majority
JN
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 453 of 2007
Jurisdiction invoked
First appeal to the Court of Appeal under the applicable appellate statutes governing appeals from the High Court (memorandum of appeal lodged 27th November 2009)

Relief refused

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The appellant's appeal against the dismissal of his claim of Kshs.7,430,406 for wrongful premature retirement

The appellant failed to prove the formal change of his date of birth, and the claim was in any event not strictly proved as special damages; the measure of damages for wrongful termination would have been salary in lieu of notice

p. 4

Costs

Each party will bear his/its own costs of the appeal

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.

This appeal fails and is dismissed, but as the appellant obtained leave of this Court to file the appeal as a pauper, each party will bear his/its own costs thereof.
p. 4Final orders - dismissal of appeal and costs
an appellate court will be slow to interfere with the findings of fact made by the trial court unless those findings are based on no evidence, or on a misapprehension of the evidence, or the Judge is shown demonstrably to have acted on wrong principles in reaching the findings.
p. 3Appellate interference with findings of fact
Issues relating to employment are contractual in nature and the appellant had a duty, once he pleaded the claims arising therefrom to strictly prove them
p. 4Special damages in employment claims
the measure of damages would be the salary in lieu of notice and not the millions claimed by the appellant
p. 4Measure of damages for wrongful termination of employment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Ronald Kimatu Ngati v Ukulima Sacco Society Ltd [2011] KECA 314 (KLR)", Case Analysis (2011). Civil Appeal No. 277 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/314/eng@2011-03-25

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