Minnie Mbue v Jamii Bora Bank Limited

Counsel for the appellant argued the application was incompetent because the order sought to be reviewed was not annexed. The Court rejected this, noting counsel for the applicant had narrowed the application to one part of the judgment, and the entire judgment was on the court file, so annexing it would have been superfluous. The Court therefore proceeded to determine the application on its merits.

The termination letter did not cite clause 19 or any sub-clause; it stated termination was by mutual consent. The Court rejected the applicant's argument that this amounted to constructive resignation under clause 19.1. The Bank's own subsequent letter expressly invoked clause 19.6 (notice/salary in lieu) and acknowledged liability under clause 20.1 for salary for the remaining 44 months, making the true intent clear.

The applicant argued the maximum compensation for unlawful termination is 12 months' salary under section 49, so the award of 44 months exceeded the Court's jurisdiction. The Court held its finding was not based on section 49 but on clause 20.1 of the letter of appointment; where the contract expressly provides for payment of the balance of salary for the unexpired term upon unlawful termination, the court must give effect to the agreed terms. Such payment is contractual enforcement, not a statutory damages award.

Although the Court has residual jurisdiction to review its own decisions to correct errors occasioning real injustice, that jurisdiction is exercised cautiously. The applicant's grounds merely re-agitated arguments it had lost on appeal, particularly on the construction of clause 19. Re-arguing an appeal is outside the province of review; accordingly no basis for review existed and the application was dismissed with costs.