D. P. Bachheta v The Government of the United States of America [2017] KECA 497 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that employees terminated before 2010 get only notice-period pay, not damages for lost future earnings.
What this practically means
#Executive summary
#Key legal issues
#Temporal application of the Constitution of Kenya, 2010 and the Employment Act, 2007 to pre-existing employment contracts
Neither the Constitution of Kenya, 2010 nor the Employment Act, 2007 applies to an employment contract terminated in 1992; counsel for the appellant properly conceded this.
The appellant's contract was determined on 10th April 1992, long before the 2010 Constitution and the 2007 Employment Act came into force. Relying on this Court's decision in Mary Wakhabubi Wafula v British Airways PLC, the Court held that the appellant's rights fell to be determined under the legal regime in force at termination. Counsel's concession abandoning grounds 1, 2 and 3 of the memorandum of appeal was therefore well founded and those grounds were rejected.
Whether general, aggravated or exemplary damages are recoverable for wrongful termination of employment under the pre-2010 regime
No. The measure of damages for wrongful termination is the salary the employee would have earned during the notice period.
Drawing on Central Bank of Kenya v Nkabu, Kenya Airways Corporation Ltd v Auma, and Kenya Ports Authority v Edward Otieno (which itself drew on Addis v Gramophone Company), the Court reaffirmed that damages are limited to the notice period. It distinguished C.P.C Industrial Products v Omweri Angima, where a 15-month award was upheld on the peculiar finding that the employer acted maliciously and callously, holding that case was not representative of the general legal principle. The trial court's award of one month's salary in lieu of notice was therefore correct.
Whether the trial Judge erred in limiting interest to one-third of the period the suit was pending
No. The award of interest under Section 26 of the Civil Procedure Act is discretionary and the trial court exercised that discretion properly.
Applying the Mbogo v Shah principle, the appellate court may interfere with discretion only where the decision is clearly wrong, based on misdirection, or on irrelevant considerations. The trial court considered the history of the litigation and concluded it would be unconscionable to award interest from 1992. The appellant demonstrated no misdirection or failure to consider relevant matters, so ground 5 failed.
Legal principles established
#- Where employment was wrongfully terminated before the Constitution of Kenya, 2010 and the Employment Act, 2007 came into force, the employee's remedies are those under the legal regime existing at termination; damages are limited to the notice period and no general damages are available.
- An appellate court will not interfere with a trial court's exercise of discretion, including on interest under Section 26 of the Civil Procedure Act, unless the decision is clearly wrong.
Court orders
#- 1.Appeal dismissed in its entirety
- 2.Costs of the appeal awarded to the respondent
- On appeal from
- High Court of Kenya at Nairobi (Milimani)
- CC No. 4973 of 1992
- Jurisdiction invoked
- First appeal to the Court of Appeal under the applicable appellate statute (not expressly stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "D. P. Bachheta v The Government of the United States of America [2017] KECA 497 (KLR)", Case Analysis (2017). Civil Appeal No. 345 "B" of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/497/eng@2017-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.