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Court of AppealDismissedCivil Appeal No. 105 of 2007· [2015] KECA 354 (KLR)

Mary Wakhabubi Wafula v British Airways Plc

Court of Appeal of Kenya
9 October 2015
6,547 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that old employment disputes get old-law remedies: the 2007 Employment Act does not apply retroactively to earlier dismissals.

What this practically means

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Executive summary

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The appellant, a former British Airways employee, sued for breach of an employment contract following the termination of her employment in December 2000. She alleged the respondent forced her resignation, engaged in the unlawful ferrying of illegal immigrants, and breached an independent implied term of mutual trust and confidence, claiming over Kshs 126 million in loss of salary, pension and benefits. Waki, J. found the termination wrongful but awarded only three months' salary in lieu of notice (Kshs 400,881). On appeal, the Court of Appeal re-evaluated the evidence and affirmed. It held the appellant's own testimony demolished any claim that the respondent carried illegal immigrants as corporate policy, so the Malik principle on damages for breach of trust and confidence could not apply. The Court further held that the enhanced remedies under the Employment Act, 2007 and the Employment and Labour Relations Court Act, 2011 do not apply retrospectively; the remedies available were those under the repealed Employment Act, Cap 226 and Trade Disputes Act, Cap 234. Article 73 of the 2010 Constitution offered no shield since the termination predated that Constitution. The Court dismissed the appeal and, exceptionally, ordered each party to bear its own costs, noting the appellant had pursued the case with industry in the hope of creating new horizons for employees in the jurisdiction.

Key legal issues

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01

Whether the Malik principle on damages for breach of the implied term of trust and confidence applied

Holding

No. The appellant's own evidence showed the respondent was not a corrupt airline carrying illegal immigrants as corporate policy, so the Malik principle was unavailable.

Reasoning

The appellant testified that during her employment the respondent never acted dishonestly towards her and never brought illegal immigrants to her for cover-up. On that admission there was no material before the trial judge to find that the respondent was anything other than a lawful international airline. The Court found no fault in the trial judge's conclusion that the Malik principle could not apply.

p. 8
02

Whether the Employment Act, 2007 and Employment and Labour Relations Court Act, 2011 remedies apply retrospectively to a pre-2007 termination

Holding

No. There was no express legislative intention for retrospective application; the applicable remedies were those under the repealed Employment Act, Cap 226 and Trade Disputes Act, Cap 234.

Reasoning

Applying the presumption against retrospectivity (lex prospicit non respicit), the Court relied on Nyali, Samuel Kamau Macharia, Philips v Eyre and Section 23 of the Interpretation and General Provisions Act, plus Schedule 5 paragraph 2(4) of the Labour Relations Act which expressly preserves the old regime for pre-commencement matters. The Court therefore could only award remedies available when the cause of action arose.

p. 11
03

Whether Article 73 of the Constitution of Kenya, 2010 and Section 74 of the retired Constitution aided the appellant

Holding

No. The contract was terminated well before the 2010 Constitution was enacted, and the claim was not founded on constitutional breaches.

Reasoning

The Court held that Article 73, which regulates the conduct of State officers, cannot shield a private employee whose employment was terminated in 2000, before the current Constitution. The respondent had also submitted, unchallenged on the point, that Section 74 of the retired Constitution was not breached and the suit was not founded on constitutional violations.

p. 11
04

Duty of a first appellate court

Holding

The Court must examine and re-evaluate the evidence but will defer to trial findings of fact made without error of principle.

Reasoning

Relying on Mwanasokoni and Peters v Sunday Post, the Court restated that a first appellate court has power to re-evaluate evidence, and that interference with factual findings is warranted only where the finding rests on no evidence, a misapprehension of the evidence, or demonstrably wrong principles.

p. 2

Legal principles established

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  • Remedies for unlawful termination are those available under the law in force when the cause of action arose; current labour laws do not apply retrospectively absent express legislative intent.
  • On a first appeal, the Court of Appeal must examine and re-evaluate the evidence, but will not interfere with a trial judge's finding of fact unless it is based on no evidence, a misapprehension of the evidence, or wrong principles.
  • Statutes are prima facie prospective; retrospective effect requires express words or necessary implication.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Each party to meet its own costs
On appeal from
High Court of Kenya at Nairobi
HCCC No. 157 of 2002
Jurisdiction invoked
First appellate jurisdiction under the Appellate Jurisdiction Act (Cap 9) over the High Court decree

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Mary Wakhabubi Wafula v British Airways Plc", Case Analysis (2015). Civil Appeal No. 105 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/354/eng@2015-10-09

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