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Court of AppealDismissedCivil Appeal No. 3 of 2006· [2015] KECA 837 (KLR)

Gideon Muriuki & another v Cleophas Wekesa & another [2015] KECA 837 (KLR)

Court of Appeal of Kenya
27 March 2015
2,540 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal ruled that company officers can stay in a wrongful dismissal lawsuit until trial, and appeals against discretionary strike-out decisions rarely succeed.

What this practically means

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Executive summary

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The Court of Appeal (Nambuye, Mwilu and Gatembu Kairu, JJ.A) dismissed an appeal against a ruling of Kubo J refusing the appellants' application under rule 13(1)(a) of Order 6 of the Civil Procedure Rules to strike out the first respondent's suit against them. The first respondent, a former bank employee, sued the Co-operative Bank for wrongful dismissal and joined the appellants, senior bank officers, alleging they engineered his removal after he queried irregular transactions. The appellants argued the Judge erred by assessing cause of action on the amended plaint of 6th March 2003, contending no amended plaint existed because a later application to amend was dismissed by Ojwang J; the Court rejected this, holding the dismissed application sought only a further amendment of the plaint already amended on 6th March 2003, which remained the operative pleading the appellants themselves had moved to strike out. The Court also held the Judge properly appreciated the doctrine of corporate personality (Salomon v Salomon, cited by the appellants) and correctly reasoned that a plaintiff suing in contract against the bank could link the wrong to tortious acts of the officers, with sustainability being a matter for trial. Applying the Mbogo v Shah principle, the Court held it would not interfere with discretionary decisions absent misdirection or a clearly wrong decision, found the discretion was exercised on correct principles, dismissed the appeal, and ordered that the costs of the appeal abide the outcome of the main suit in the High Court.

Key legal issues

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01

Whether the Judge erred in considering the amended plaint when determining whether a cause of action was disclosed

Holding

No error: the application dismissed by Ojwang J sought a further amendment of the plaint already amended on 6th March 2003, so the amended plaint of 6th March 2003 was the operative pleading the Judge was right to consider.

Reasoning

The Court traced the pleadings history. The 6th March 2003 amendment was already on record; the 11th February 2004 application sought a further amendment, and its dismissal by Ojwang J left the 6th March 2003 amended plaint intact. The appellants themselves had moved to strike out that amended plaint, so the Judge rightly assessed cause of action on it.

p. 4
02

Whether the appellants, as employees of the bank, were wrongly joined in a claim founded on a contract of employment between the first respondent and the bank

Holding

The Judge appreciated the doctrine of corporate personality and correctly held that the plaintiff could link the bank's contractual breach with the officers' tortious acts; joinder was a matter for trial, not interlocutory striking out.

Reasoning

The Judge extracted at length from the ruling showing he recognized the bank as a separate legal entity but that where a body corporate's wrong involves human agents, the plaintiff may connect the contractual breach to related tortious acts of the officers. Whether those claims succeed is for trial. The Court declined to substitute its discretion and found the discretion was exercised on correct principles.

p. 5
03

The standard for appellate interference with discretionary decisions

Holding

Interference is warranted only where the discretion was exercised injudiciously, on a misdirection resulting in a wrong decision, or where the decision is manifestly clearly wrong, per Sir Charles Newbold P in Mbogo v Shah.

Reasoning

The Court restated the classic Mbogo v Shah principle and Matiba v Moi: an appellate court should not substitute its own discretion for that of the lower court unless the lower court misdirected itself, failed to take relevant matters into account, or took irrelevant matters into account. Neither ground advanced by the appellants met that threshold.

p. 3

Legal principles established

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  • An appellate court may only interfere with the exercise of discretion by a lower court where that discretion was not exercised judiciously, was misdirected, or where the decision is clearly wrong; it will not substitute its own discretion.
  • Whether allegations made against parties in a suit are sustainable is a matter for determination at the hearing of the main suit, not at an interlocutory stage of an application to strike out.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The costs of the appeal will abide the outcome of the main suit in the High Court
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 23 of 2003
Jurisdiction invoked
First appellate jurisdiction under the Civil Procedure Rules/appeal from a High Court ruling; no specific constitutional provision invoked

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gideon Muriuki & another v Cleophas Wekesa & another [2015] KECA 837 (KLR)", Case Analysis (2015). Civil Appeal No. 3 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/837/eng@2015-03-27

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