Volenzo Tom Elijah v Attorney General [2017] KECA 690 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that an employer must prove its stated reasons for dismissal, awarding a wrongly dismissed employee nearly Sh2.5 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial judge erred in finding that the appellant never rebutted the allegations of misappropriation
The appellant's statement of claim, reply letter of 12th February 2010 with invoices and receipts, and written submissions constituted a full rebuttal; once rebutted, the burden shifted to the respondent to counter that evidence, which it failed to do.
The parties had agreed to canvass the claim by documents and written submissions without oral evidence, and no witness statements were filed. The judge failed to advert to the appellant's statement of claim, submissions and documents. The appellant responded to each allegation with invoices, payment acknowledgments and receipts, and the Anti-Corruption Commission never pursued him. The conclusion that there was no rebuttal was reached in error, and the rebuttal therefore stood uncontested.
Whether the trial judge could rely on fresh allegations of fact made only in the respondent's written submissions
He could not. Allegations raised for the first time in submissions, not in the pleadings, denied the appellant the opportunity to rebut and required proof that the respondent never provided.
In its written submissions the respondent introduced new allegations that the appellant was an independent contractor and had failed to hand over, which did not flow from the pleadings or proceedings. The appellant was given no opportunity to respond. The judge adopted these allegations as conclusive findings of fact and even asserted that the donor became unco-operative due to the appellant's impropriety, without any evidence at all. A judgment must rest on the pleadings, evidence and law presented.
Whether the appellant's dismissal complied with clause 11 of the employment contract
The dismissal was unjustified. None of the contractual grounds for suspension or termination in clause 11 was established against the appellant.
The termination letter anchored dismissal on clause 11, whose conditions included failure to discharge duties, accusation of criminal acts in a court of law, or interference with duties. There was no evidence the appellant failed in his duties or faced criminal accusation in any court. He answered the audit queries adequately, and no further action was ever taken against him by the respondent or the Anti-Corruption Commission despite the serious allegations. The respondent therefore had no basis to suspend or terminate.
Whether the respondent discharged its burden under section 43 of the Employment Act, and whether the dismissal was genuinely believed to be justified
The respondent failed to prove the reasons for termination, rendering the dismissal unfair; the World Bank's letter pressuring the Government to terminate the contracts of district staff not exonerated in the audit defeated the sincerity and genuineness of the employer's belief in the allegations.
Section 43 requires the employer to prove the reasons for termination, failing which the termination is deemed unfair under section 45. The respondent provided no proof. Moreover, the World Bank's letter of 10th May 2010 recommended termination of the contracts of district staff not exonerated; within eighteen days the appellant was dismissed, despite nothing new emerging since his suspension in September 2009. This pressure undermined any genuine belief by the employer in the allegations.
What remedies the appellant was entitled to under section 49 of the Employment Act
The appellant was entitled to compensation of ten months' gross salary, unpaid salary from the date of suspension to termination, and accrued leave, with costs and interest.
Section 49 entitles an employee whose termination is wrongful and unfair to, among other remedies, the equivalent of up to twelve months' wages. The court selected ten months' salary as compensation. The claims for unpaid salary of Kshs.1,093,077.00 and accrued leave of Kshs.182,179.50 were not specifically disputed by the respondent and were therefore justified and allowed, bringing the total award to Kshs.2,489,786.50.
Legal principles established
#- On a first appeal, the Court of Appeal reconsiders and re-evaluates the evidence and draws 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 where he failed to take account of material circumstances or probabilities.
- A court's decision must be founded only on the pleadings, evidence and law placed before it by the parties; a trial judge may not adopt fresh allegations of fact made for the first time in written submissions, which were never pleaded and which the opposing party had no opportunity to rebut.
- Under section 43 of the Employment Act, the employer bears the burden of proving the reason or reasons for termination; where the employer fails to do so, the termination is deemed unfair within the meaning of section 45.
- A wrongful dismissal occurs where an employer dismisses an employee in breach of the employment contract; termination outside the contractual grounds for suspension and termination is unjustified even where the employee has been given an opportunity to respond to allegations.
Court orders
#- 1.The judgment and decree of Njagi Marete, J. dated 13th March, 2014 is set aside
- 2.An order substituted allowing the appellant's claim in terms
- 3.Compensation of 10 months' gross salary (Kshs.1,214,530.00)
- 4.Unpaid salary from the date of suspension to the date of termination of Kshs.1,093,077.00
- 5.Accrued leave of Kshs.182,179.50
- 6.Total judgment of Kshs.2,489,786.50 plus costs and interest
- On appeal from
- Industrial Court of Kenya at Nairobi (now Employment and Labour Relations Court)
- Industrial Court Cause No. 1413 of 2010
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Constitution and applicable appellate statutes (the judgment invokes the settled duty of the Court of Appeal on a first appeal, per Selle & Another v Associated Motor Boat Company Ltd)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Volenzo Tom Elijah v Attorney General [2017] KECA 690 (KLR)", Case Analysis (2017). Civil Appeal No. 294 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/690/eng@2017-03-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.