Simon P M Karimi v Kenya Commercial Bank Limited & another [2015] KECA 883 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed an employee who refuses a lawful transfer can be summarily dismissed, and unproven or unpleaded claims will fail.
What this practically means
#Executive summary
#Key legal issues
#Burden and standard of proof on a first appeal from dismissal of the plaintiff's claim
The appellant, as prime mover of the litigation, bore the burden of proving his claim on a balance of probability; the respondents' failure to call oral evidence did not lessen that burden, and the trial judge applied the correct standard
Section 107 of the Evidence Act and Order 21 rule 4 of the Civil Procedure Rules place the evidential burden on the party asserting facts. Case law (Kituu v Nzambi) crystallises the balance-of-probability standard. The trial judge analysed the claim, the documentary exhibits and the law, so her judgment complied with Order 21 rule 4 and no higher standard was applied.
Whether the appellant disobeyed a lawful transfer order
The transfer directive issued under the mobility clause of the contract of employment was lawful; in the absence of any written communication from the 1st respondent halting the transfer, the appellant's letter of 15th February 1993 constituted disobedience of a lawful order justifying summary dismissal
The letter of appointment empowered the Bank to deploy the appellant anywhere in any capacity. The circular of 31st December 1992 directed him to Voi effective 11th January 1993. No written variation or hold was ever issued; his own letter declared he would decline the transfer, which itself proved disobedience.
Relief not pleaded
The early-retirement relief could not be granted because it was not pleaded, testified upon or submitted upon, and the parties had not left the issue for the court's determination
Following Gandy v CAS Par Air Charters, Blay v Pollard and Morris, Odd Jobs v Mubia, Uyas Industries v Diocese of Meru and Tracom Ltd v Hassan Mohammed Adan, issues flow from the pleadings and a court may only pronounce judgment on pleaded issues unless the unpleaded issue was in fact left to the court at trial.
Whether desertion was condoned or penal consequences omitted
Removal from the payroll and the requirement to surrender bank property were the penal consequences of desertion; the trial judge rightly characterised these as summary dismissal under section 17 of the Employment Act, and there was no condonation
The employer never used the words 'summary dismissal' but removed the appellant from the payroll and demanded return of bank property. Section 17 renders an employee who absconds liable to summary dismissal. No policy document was proved requiring a disciplinary committee hearing before such action.
Natural justice and discrimination
The appellant was heard - he appealed the transfer, corresponded with senior management and received a reply - so no breach of natural justice arose; the discrimination claim failed as no similarly situated colleague was spared
The appellant appealed the transfer, raised the matter with the Managing Director and Human Resource Manager, and received a response from the Executive Chairman. Ndenderu's case involved a request for voluntary early retirement and a consent settlement, circumstances entirely different from the appellant's defiance of a transfer.
Legal principles established
#- A plaintiff bears the burden of proving his claim on a balance of probability irrespective of whether the opponent calls evidence or responds to the claim
- A defendant's failure to call oral evidence does not amount to abandonment of its case where its documents have been admitted by consent and it cross-examines and files submissions
- A court may not grant relief not founded on the pleadings unless the unpleaded issue was left to the court for decision at trial
- A master may summarily dismiss a servant for disobedience of lawful and reasonable orders; an employee absconding from duty is liable to summary dismissal under section 17 of the Employment Act
Court orders
#- 1.The appeal is dismissed
- 2.Costs awarded to the respondents both in the Court of Appeal and in the High Court
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 998 of 2001
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (the judgment identifies it as 'a first appeal'); no specific constitutional provision invoked
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (5)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Konyelo v Chief of Kenya Defence Forces & 2 others (Petition E073 of 2022) [2024] KEELRC 1087 (KLR)[2024] KEELRC 1087 (KLR)12 Mar 2024
- Jenifer Ngendo Waweru (Suing as the Legal Representative of the Estate of the Late Stephen Waweru Njenga) v James Mwangi Mathu & The Attorney General[2023] KEELC 19083 (KLR)27 Jul 2023applied
- Kenya Union of Commercial Food and Allied Workers v Sameer Agricultural and Livestock Kenya Ltd (Cause E020 of 2020) [2023] KEELRC 1021 (KLR)[2023] KEELRC 1021 (KLR)25 Apr 2023
- Humprey Muthuri Riungu v Teachers Service Commission [2019] KEELRC 242 (KLR)[2019] KEELRC 242 (KLR)3 Dec 2019
- Anne Wino Misumi Gumbi v Youth Enterprise Development Fund Board [2018] KEELRC 38 (KLR)[2018] KEELRC 38 (KLR)20 Dec 2018
Cite this brief
#Cite this brief
Caselaw, "Simon P M Karimi v Kenya Commercial Bank Limited & another [2015] KECA 883 (KLR)", Case Analysis (2015). Civil Appeal No. 168 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/883/eng@2015-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.