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Court of AppealDismissedCivil Appeal No. 61 of 2015· [2016] KECA 519 (KLR)

Bamburi Cement Limited v Kioko Joseph [2016] KECA 519 (KLR)

Court of Appeal of Kenya
Invalid Date
1,828 words in judgment
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The bottom line

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Kenya's Court of Appeal upheld an employee's wrongful dismissal award because the employer never called its key witnesses at the disciplinary hearing.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Makhandia, Oku and M'inoti, JJ.A.) dismissed this employer's appeal against an Employment and Labour Relations Court decision by Rika, J. awarding the respondent, a long-serving filter machinist dismissed over allegations of stealing metal kiln support beams from the plant, notice pay and three months' gross salary in compensation, with costs. The Court affirmed the finding that the respondent was not accorded a fair hearing: the three independent witnesses who allegedly saw the theft were never called, and the disciplinary panel itself displayed doubts about his participation. Relying on Article 47 of the Constitution, it held that an employee is entitled to be informed in advance of the evidence against him and to challenge it, including face-to-face confrontation with accusers. It endorsed the principle that a breach warranting summary dismissal must go to the root of the contract - Lord Greene's 'hardcore' of the bargain in Alderslade v Hendon Laundry Ltd. On interpretation, it held that the Employment Act uses 'termination' (with 'unfair') and 'dismissal' (with 'wrongful') distinctively, with differing remedies under section 49. A late-filed response was held admissible where both parties were allowed to participate, per Article 159 and section 3 of the Employment & Labour Relations Court Act. On quantum, the Court applied the Butt v Khan test for appellate interference and found the discretion properly exercised, directing only that the section 49(1)(c) award be subject to statutory deductions. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether summary dismissal was justified notwithstanding the absence of the three critical witnesses at the disciplinary hearing

Holding

Not justified; the failure to call the witnesses who allegedly saw the theft, plus doubts within the panel itself, meant the allegations were unproved and the hearing unfair

Reasoning

The three independent witnesses - the night guard, stores attendant and shift supervisor - who allegedly witnessed the theft were never called, denying the respondent a face-to-face confrontation with his accusers. The panel itself displayed doubts, asking whether he had enemies. Under Article 47 the employee is entitled to be informed of the evidence in advance and to challenge it. The dismissal was therefore wrongful and unfair, and the appeal failed on this central ground.

p. 3
02

Terminology: 'unfair termination' versus 'wrongful dismissal' under the Employment Act

Holding

The two phrases are used distinctively and are not interchangeable; they carry different remedies under section 49

Reasoning

Part VI of the Act deals separately with termination and dismissal, and section 49 provides different remedies for wrongful dismissal and unfair termination. The parties' submissions and the court below had used the phrases interchangeably. The Court flagged the distinction for analysis but the draft reasoning is truncated; the distinction remains a binding interpretive observation on the Act's structure.

p. 1
03

Admissibility of a response filed out of time

Holding

Admissible where the court receives it and the other party participates; the objection becomes moot and spent

Reasoning

The Employment and Labour Relations Court, guided by Article 159's overriding objective and section 3 of the Employment & Labour Relations Court Act, properly received the late response, and the appellant having been allowed to participate, the objection was moot and spent. The Court declined to say more. This endorses substance over technicality in employment litigation.

p. 2
04

Quantum under section 49(1)(c) of the Employment Act

Holding

Judicial discretion properly exercised; award of three months' salary upheld, subject only to the omitted direction on statutory deductions

Reasoning

The learned Judge, though free to award up to twelve months' salary, limited the award to three months. Even though the respondent had served over twenty years, the appellate court found the discretion properly exercised. Interference on appeal requires an entirely erroneous estimate, wrong principles, or material misapprehension of evidence. The only correction was that the compensation award be subject to statutory deductions.

p. 4

Legal principles established

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  • The Employment Act uses 'termination' (qualified by 'unfair') and 'dismissal' (qualified by 'wrongful') deliberately and distinctively, with different remedies attaching to each under section 49
  • A breach justifying summary dismissal must go to the root of the contract of employment
  • An employee facing disciplinary charges is entitled to know the evidence in advance and to confront and challenge those who accuse him, per Article 47 of the Constitution
  • A late-filed response is admissible where the court receives it and the other side is allowed to participate, in the spirit of Article 159 and section 3 of the Employment & Labour Relations Court Act
  • An appellate court will interfere with quantum only where the award is so inordinately high or low as to be an entirely erroneous estimate, or where wrong principles or a misapprehension of the evidence produced an erroneous conclusion

Court orders

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  1. 1.Appeal dismissed
  2. 2.Each party shall bear its own costs
  3. 3.Award under section 49(1)(c) of the Employment Act to be subject to statutory deductions (direction supplied by appellate court)

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 159
  • Employment ActSection 44(3)
  • Employment ActSection 49(1)(a)
  • Employment ActSection 49(1)(c)
  • Employment ActPart VI
  • Employment & Labour Relations Court ActSection 3

Cases cited (7)

  • CFC Stanbic Bank Ltd v Danson Mwashako Mwakuwona
    Civil Appeal No. 3 of 2014
  • Judicial Service Commission v Gladys Boss Shollei
    Civil Appeal No. 50 of 2014
  • Nampak Corrugated Wadeville v Khoza
    (JA 14/98) (1988) ZALAC 24
  • Alderslade v Hendon Laundry Ltd
    (1945) KB 189
  • Michael Dowling v Work Place Safety & Insurance Board
    (2004) CAN LII 43692
  • McKinley v B.C. Tel
    (2001) 2 S.C.R. 161
  • Butt v Khan
    (1981) LR 349
On appeal from
Employment and Labour Relations Court
not stated
Jurisdiction invoked
first appeal to the Court of Appeal under the Employment Act / Employment and Labour Relations Court Act framework (specific provision not stated in judgment extract)

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, "Bamburi Cement Limited v Kioko Joseph [2016] KECA 519 (KLR)", Case Analysis (). Civil Appeal No. 61 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/519/eng@2016-05-27

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