Jacqueline Kiaraho v Co-operative Bank of Kenya [2017] KECA 371 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that wrongfully dismissed employees can generally only recover notice pay specified in their contract, not general damages.
What this practically means
#Executive summary
#Key legal issues
#Standard of review on a first appeal
The Court re-analyses and re-evaluates the evidence, drawing its own conclusions while making due allowance for not having seen or heard the witnesses, and is not bound by the trial judge's findings of fact.
Relying on Selle v Associated Motor Boat Co., the Court framed its primary role as one of retrial-type review. It will depart from trial findings where the trial judge failed to take account of material circumstances or probabilities, or where a demeanour-based impression is inconsistent with the evidence generally.
Whether the dismissal was unlawful and actuated by malice
The dismissal was not unlawful. The appellant had received the letter of reinstatement and transfer of 25th September 2000 before writing her letter of 3rd October 2000 opting for retrenchment, and the summary dismissal was a reaction to that letter.
The Court agreed with the trial judge that the dismissal letter of 24th October 2000 was written in reaction to the appellant's resignation-under-retrenchment letter of 3rd October 2000. Her claim that she knew of her reinstatement only orally was unconvincing, since her 3rd October letter thanked the Bank for reinstating her from retrenchment. Having received the reinstatement letter, her conduct amounted to refusing lawful instructions justifying dismissal under Appendix 14 of the Staff Manual.
Entitlements upon summary dismissal
The appellant's entitlement was limited to one month's salary in lieu of notice per her letter of employment; she was not entitled to general damages, special damages or a retrenchment package.
The governing law was the repealed Employment Act, Cap 226, whose section 16 allowed termination without notice upon payment of salary for the notice period. Following a long line of decisions, general damages are not awardable for breach of an employment contract, and where the contract has a termination clause the measure is the stipulated notice period. As the second termination was not by redundancy, the retrenchment package claim also failed.
Legal principles established
#- On a first appeal, the Court of Appeal must reconsider and re-evaluate the evidence afresh while making allowance for not having seen or heard the witnesses.
- Where a contract of service contains a termination clause, compensation for wrongful dismissal is confined to the period specified in that clause; general damages are not awardable for breach of an employment contract.
Court orders
#- 1.The appeal is dismissed
- 2.The appellant shall pay the respondent's costs of the appeal
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Civil Case No. 2158 of 2001
- Jurisdiction invoked
- First appeal to the Court of Appeal under the applicable appellate statute (appeal as of right from the High Court in a civil matter)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Jacqueline Kiaraho v Co-operative Bank of Kenya [2017] KECA 371 (KLR)", Case Analysis (2017). Civil Appeal No. 37 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/371/eng@2017-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.