Agricultural Finance Corporation v Banking Insurance & Finance Union (K)
The bottom line
#Kenya's Court of Appeal threw out a large unfair dismissal award because the employee only asked for reinstatement, confirming courts cannot grant relief nobody pleaded.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge's failure to reopen the defence to allow the appellant adduce further evidence after its closure at the instigation of the respondent and also the failure to accord them an opportunity to file written submissions amounted to an unfair hearing.
- 2.Whether the learned Judge fell into error when she made findings that the respondents' termination from her employment with the appellant was substantively and procedurally unfair.
- 3.Whether the learned Judge fell into error when she awarded the respondent a multiplicity of awards.
Key legal issues
#Denial of fair hearing through closure of the defence without proof of service
Where no return of service or hearing notice is exhibited on the record, an appellant cannot be faulted for complaining of an unfair hearing; closing the defence in those circumstances denies a fair hearing.
The trial court closed the appellant's defence on the strength of a return of service referred to by the respondent's counsel but never exhibited. With nothing on the record proving service of the hearing date or the hearing notice, the appellant's complaint of an unfair hearing was well founded. The court nonetheless declined to remit, proceeding on the record.
Whether termination was substantively and procedurally unfair
The termination was not unfair: the employer complied with sections 43, 44, 45 and 47 of the Employment Act, and the evidence of malpractice was among the evidence wrongly shut out.
The grievant admitted the procedural steps: assignment as cashier, suspension, two show cause letters, disciplinary process to appellate stage, and conciliation. The employer was entitled to elect the internal mechanism rather than prosecution. The Judge's finding of unfairness rested on the absence of documentary proof, but that evidence (including the Auditor's) was among what she had wrongly excluded.
Award of reliefs not pleaded
A court cannot award a multiplicity of reliefs where only one relief (reinstatement) was pleaded; amending the claim suo motu is prejudicial error.
The respondent pleaded only reinstatement without loss of benefits. Relying on Gandy v Caspar Air Charters and Odd Jobs v Mubia, the court held that judgment must flow from the pleadings and issues framed for the court. The Judge's suo motu amendment and multiplicity of awards amounted to descending into the arena and prejudiced the appellant.
Legal principles established
#- A trial court may not award relief not founded on the pleadings; parties are confined to their pleadings.
- An employer who elects the internal dispute resolution route instead of prosecution must strictly observe the statutory procedures for termination under the Employment Act.
- On a first appeal, the court re-appraises the evidence and may interfere with trial findings of fact only where they are based on no evidence or wrong principles.
Court orders
#- 1.The findings of the learned Judge dated 24th February 2015 are set aside and substituted with an order dismissing the respondent's claim against the appellant, but affirming the conciliation award by the Labour Officer.
- 2.The appellant will have costs of the appeal and the court below.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment & Labour Relations Court at Nairobi
- Cause No. 2113 of 2012
- Jurisdiction invoked
- First appeal under Rule 29(1) of the Court of Appeal Rules
Relief refused
#Reinstatement with no loss of benefits (as sought by the respondent in the claim)
The claim was dismissed; the court confined relief to the conciliation award.
Costs
The appellant will have costs of the appeal and the court below.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot of the above reasoning and assessment is that, we find merit in this appeal. The same is allowed.
The findings of the learned Judge dated the 24th February, 2015 are hereby set aside and substituted with an order dismissing the respondents claim against the appellant, but affirming the conciliation award by the Labour Officer.
(2) The appellant will have costs of the appeal and the court below.
As a rule relief not founded on the pleadings will not be given
there is no way the appellant can be faulted on its complaint that they were subjected to an unfair hearing. The complaint is therefore well founded.
we are obligated to reconsider the evidence, evaluate it ourselves and draw out our own conclusions, while at the same time bearing in mind that we neither saw nor heard the witnesses testify
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Agricultural Finance Corporation v Banking Insurance & Finance Union (K)", Case Analysis (2018). Civil Appeal No. 216 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/844/eng@2018-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.