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Court of AppealAllowedCivil Appeal No. 145 of 2013· [2018] KECA 830 (KLR)

Philip Amwayi Wokinda v Rift Valley Railways Limited

Court of Appeal
16 February 2018
RNR.N. NambuyePKP.O. KiageAMA.K. Murgor
3,718 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that an employer who fails to call key witnesses or hear an internal appeal unfairly terminates the employee.

What this practically means

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Executive summary

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The Court of Appeal allowed this first appeal against the judgment of the Industrial Court (D.K. Njagi Marete, J.) dated 15 March 2013 in Cause No. 1177 of 2012, which had dismissed the appellant's claim challenging his summary dismissal by Rift Valley Railways Limited for gross misconduct arising from the irregular receipt and storage of a consignment of maize at Kisumu. The appellant, a former Kenya Railways employee who transferred to the respondent in 2006, was dismissed after disciplinary proceedings; his internal appeal was acknowledged but never heard. The Court, exercising its Rule 29(1) mandate to re-appraise the evidence, framed two issues: whether the dismissal was wrongful, and the appropriate remedies. It held that the respondent failed to discharge its burden under section 43 of the Employment Act to prove the reasons for dismissal: its sole witness spoke only to proper procedures, and the crucial witnesses - Mr. Omondi, who allegedly received and stored the consignment, and Mr. Ojok, who ascertained the quantity - were not called, with no explanation, warranting an adverse inference. The appellant had discharged his burden under section 47(5). The Court further held that the respondent's failure to process the appellant's internal appeal amounted to unfair termination under section 45(5)(a), the report of a trade dispute to the Minister being no bar. Allowing the appeal, the Court declared the dismissal unlawful and unfair and awarded notice pay, terminal dues, suspension-period salary, four months' compensation, interest and costs both here and below.

Key legal issues

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01

Whether the dismissal was wrongful for failure to prove reasons under section 43 of the Employment Act

Holding

The respondent failed to discharge its burden under section 43; the appellant discharged his burden under section 47(5); the dismissal could not stand.

Reasoning

The respondent's sole witness testified only on proper handling procedures, not on the facts of receipt and storage of the consignment. The material witnesses, Mr. Omondi and Mr. Ojok, were not called and no reason was given for their absence, justifying an adverse inference. The trial judge gave no reasons for disbelieving the appellant's unchallenged sworn testimony in favour of hearsay-based best-practices evidence.

p. 4
02

Whether failure to process the appellant's internal appeal amounted to unfair termination

Holding

Yes; the respondent's failure to process the timeously filed appeal amounted to unfair termination under section 45(5)(a).

Reasoning

It was common ground the appeal against dismissal was filed and acknowledged but never heard. The respondent justified this by the appellant's report of a trade dispute to the Minister, but section 47 permits multiple complaints and does not bar processing the internal appeal. The trial judge erred in ignoring this admitted aspect of the case.

p. 4
03

Appropriate remedies for unfair termination

Holding

Declaration of unlawful and unfair termination, notice pay, terminal dues, salary for the suspension period, and four months' salary as compensation under section 49.

Reasoning

Having found the termination unfair, the court considered the wide range of remedies under section 49 in light of the record and selected notice pay, terminal dues, suspension-period salary and four months' compensation, with interest and costs.

p. 4

Legal principles established

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  • An employer must prove the reasons for termination under section 43 of the Employment Act; failure to call material witnesses featured in the allegations permits an adverse inference that their evidence would have been adverse to the employer.
  • An employee's report of a trade dispute to the Minister or a labour officer does not bar the employer from processing an internal appeal against dismissal; failure to process the appeal amounts to unfair termination.

Court orders

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  1. 1.A declaration that the respondent's dismissal of the appellant from its employment was unlawful and unfair
  2. 2.One month's salary in lieu of notice
  3. 3.Payment of terminal dues payable on normal termination
  4. 4.Payment of salary from the date of suspension to dismissal if not already paid
  5. 5.Four months' salary as compensation for the unlawful and unfair termination
  6. 6.Interest on the amount awarded from the date of judgment in the superior court till payment in full
  7. 7.Costs of the appeal and of the court below to the appellant

Authorities

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Legislation

  • Employment Actsection 43(1)
  • Employment Actsection 44(4)(c)
  • Employment Actsection 45(5)(a)
  • Employment Actsection 47(5)
  • Employment Actsection 47
  • Employment Actsection 49
  • Evidence Actsection 143
  • Rules of the CourtRule 29(1)
  • Labour Laws of Kenya2007
  • Respondent's Code of Conductclause 4.0(a)(iii)(c)(i), (vii), (xviii)
  • Traffic Accounts Manualclauses 709 & 710
  • Human Resource Policies and Procedures Manual

Cases cited (1)

  • Pandya versus Republic
    [1957] EA 336

    Duty of a first appellate court to rehear the case, reconsider the materials, make up its own mind and not shrink from overruling the judgment appealed from.

On appeal from
Industrial Court of Kenya at Nairobi (now Employment and Labour Relations Court)
Cause No. 1177 of 2012
Jurisdiction invoked
First appeal under Rule 29(1) of the Rules of the Court (Court of Appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Philip Amwayi Wokinda v Rift Valley Railways Limited", Case Analysis (2018). Civil Appeal No. 145 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/830/eng@2018-02-16

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