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Court of AppealDismissedCivil Appeal No. 63 of 2015· [2017] KECA 752 (KLR)

Jhpiego Kenya v Duncan Mwirigi Arithi

Court of Appeal
1 March 2017
4,062 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that employers must prove summary dismissal reasons, and emails are admissible evidence in employment cases.

What this practically means

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Executive summary

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The Court of Appeal at Nyeri (Waki, Nambuye and Kiage, JJA) dismissed an appeal by Jhpiego Kenya against an ELRC award of Sh. 401,080 (eight months' salary) to a driver/office assistant summarily dismissed for allegedly using abusive Ki-Meru language towards colleagues during a field activity. The court framed four issues: admissibility and evaluation of an exculpatory email by Patrick Muriuki (not called as a witness); the direction of the abusive words; the fairness of the dismissal; and the basis of the damages. It held that section 78A of the Evidence Act admitted the electronic email, which had been produced by consent, and the employer could have called its author for cross-examination. On credibility, the court affirmed that the words were directed at the employee's sister, not the lady officers, the employer's witnesses having given conflicting, coached accounts. The dismissal, expressly predicated on section 44(4)(d) of the Employment Act, was held both procedurally and substantively unfair: the employer failed to prove the words were directed at a person in authority, failed to prove compliance with section 41 (accompaniment by a person of choice), and bore the burden under sections 43 and 45. The discretionary award of eight months' compensation under section 49(1)(c) was not disturbed on the Butt v Khan principles. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Admissibility of the email evidence

Holding

The email was admissible under section 78A of the Evidence Act and was properly evaluated, having been produced by consent; the employer could have called Muriuki for cross-examination if it doubted the email.

Reasoning

The email was generated by the employer for its internal investigations and produced by consent without proof of originals. The consent amounted to an invitation to the trial court to evaluate the contents. Section 78A admits electronic messages regardless of form, and the employer retained the power to call the author for cross-examination but chose not to.

p. 6
02

Direction of the abusive words

Holding

The abusive words were directed at the employee's sister, not at the lady officers, affirming the trial court's credibility findings.

Reasoning

The employee's evidence, corroborated by Muriuki's exculpatory email, was consistent and credible, while the employer's three witnesses gave conflicting accounts and were coached by Dr. Macharia on what to say, diminishing probative value. The trial court, having seen the witnesses, was better placed to assess credibility.

p. 6
03

Fairness of the summary dismissal

Holding

The dismissal was both procedurally and substantively unfair; the employer failed to prove a valid reason under sections 43 and 45 or that the words were directed at a person in authority under section 44(4)(d).

Reasoning

The dismissal was expressly predicated on section 44(4)(d), requiring abusive language directed at the employer or a person in authority. The employee's supervisor was not at the scene and no evidence showed the lady officers had authority over him. The employer also failed to prove the employee was accompanied by a person of his choice at the disciplinary hearing under section 41.

p. 7
04

Quantum of damages

Holding

The award of 8 months' salary under section 49(1)(c) was a proper exercise of discretion and would not be disturbed.

Reasoning

Compensation of up to twelve months' wages is a lawful discretionary remedy under section 49(1)(c). The trial court gave reasons for reducing the award to 8 months, and on the Butt v Khan principles an appellate court interferes only where the award is entirely erroneous or the judge proceeded on wrong principles or misapprehended the evidence.

p. 7

Legal principles established

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  • Section 78A of the Evidence Act renders electronic and digital evidence admissible in employment proceedings notwithstanding that it is not in original form.
  • The employer bears the onus of proving that abusive language was directed at a person placed in authority over the employee for summary dismissal under section 44(4)(d) of the Employment Act.
  • Contractual terms falling foul of the minimum statutory terms under section 3(6) of the Employment Act are null and void.
  • A first appellate court will not lightly differ from trial court findings of fact based on witness credibility, absent no evidence or wrong principles.

Court orders

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  1. 1.Appeal dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Employment ActSection 3
  • Employment ActSection 3(6)
  • Employment ActSection 41
  • Employment ActSection 42
  • Employment ActSection 43
  • Employment ActSection 44
  • Employment ActSection 44(4)(d)
  • Employment ActSection 45
  • Employment ActSection 49(1)(c)
  • Employment ActSection 50
  • Employment ActSection 92
  • Evidence ActSection 2
  • Evidence ActSection 78A
  • Industrial Court Act, 2011
  • Trade Disputes ActCap 234
  • Employment and Labour Relations Court ActSection 27(1)
  • Industrial Court RulesRule 24(3)
  • Court of Appeal Rules, 2010Rule 29(1)(a)

Cases cited (3)

  • Kenya Airways Ltd vs. Aviation & Allied Workers Union Kenya & 3 others
    [2014] eKLR

    That exemption from strict rules of evidence does not warrant the court acting on conjecture and misapplication of the law.

  • Ephantus Mwangi vs Duncan Mwangi Wambugu
    (1982-88) 1 KAR 278

    First appellate court will not lightly differ from trial court findings of fact unless based on no evidence or wrong principles.

  • Butt vs. Khan
    [1981] KLR 349

    Appellate court will not disturb an award of damages unless inordinately high or low or judge proceeded on wrong principles.

On appeal from
Employment and Labour Relations Court, Nyeri
E.L.R.C. Cause No. 153 of 2014
Jurisdiction invoked
First appeal under the Court of Appeal Rules, 2010 (Rule 29(1)(a))

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, "Jhpiego Kenya v Duncan Mwirigi Arithi", Case Analysis (2017). Civil Appeal No. 63 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/752/eng@2017-03-01

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