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Court of AppealPartially AllowedCivil Appeal No. 159 of 2012· [2019] KECA 833 (KLR)

Moi Teaching and Referral Hospital v James Kipkonga Kendagor [2019] KECA 833 (KLR)

Court of Appeal
22 March 2019
William OukoW. OukoASAsike-MakhandiaAMA.K. Murgor
3,487 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 even an employee who abandons duty must be given a hearing before dismissal, but slashed the damages awarded.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi (Ouko, P; Makhandia and Murgor, JJ.A) heard the employer's appeal against a decision of the Industrial Court (Chemmuttut, J) in which the respondent, a clinical officer, succeeded in a claim for unlawful and unfair summary dismissal following alleged desertion of duty between 25th and 29th July 2009. The trial court had awarded 12 months' compensation plus a further 12 months' damages, totalling approximately Kshs. 1,029,552, less statutory deductions. The appellant challenged the factual basis for the award, the finding that disciplinary procedures were not followed, and the double compensation award said to contravene the 12-month cap in sections 49 and 50 of the Employment Act. The Court re-evaluated the evidence as on a first appeal and agreed with the trial Judge that no disciplinary hearing was conducted: the respondent replied to the show cause letter, appealed internally, and presented himself at a committee meeting but was never heard. Liability for wrongful and unfair summary dismissal was therefore affirmed. On quantum, however, the Court held that the trial Judge, having rejected reinstatement, awarded the statutory maximum of 12 months' compensation plus a further 12 months' damages without justification and beyond the respondent's own pleaded claim. Applying section 50 of the Employment Act and its own precedents, the Court set aside the entire award of Kshs. 514,776 under head (a) and reduced the award under head (b) to six months' salary. The appeal partially succeeded, with the appellant awarded half the costs of the appeal. The judgment binds lower courts on the requirement of a hearing before summary dismissal and the justification required for maximum compensation awards.

Key legal issues

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01

Lawfulness of summary dismissal for desertion of duty

Holding

While absence without leave or lawful cause constitutes misconduct justifying dismissal, the employer must still comply with the statutory notification and hearing procedure; failure to hear the employee renders the summary dismissal wrongful and unfair

Reasoning

The Court held that although the respondent's absence without leave was capable of amounting to gross misconduct under section 44(4)(a) of the Employment Act, the appellant never conducted a disciplinary hearing. The respondent replied to the show cause letter, appealed internally, attended the Establishment Committee meeting but was snubbed and never heard. Sections 41 and 44 and the employer's own service booklet require warnings and a hearing before dismissal. Liability for wrongful and unfair summary dismissal was therefore affirmed.

p. 3
02

Double compensation and the statutory cap on awards

Holding

The award of 12 months' compensation plus a further 12 months' damages, exceeding the pleaded claim and the statutory maximum of 12 months under sections 49 and 50 of the Employment Act, was an error of principle entitling the appellate court to interfere

Reasoning

The Court found the trial Judge awarded the statutory maximum of 12 months' compensation and a further 12 months' damages without justification, exceeding the respondent's own pleaded claim of Kshs. 514,776. Citing section 50 of the Employment Act and Ol Pejeta Ranching, the Court held a maximum award must be justified; the Judge took into account irrelevant considerations and failed to take into account relevant ones, so the double award was set aside and compensation reduced to six months' salary.

p. 4
03

Role of the Court of Appeal on a first appeal and on quantum

Holding

On a first appeal the Court re-evaluates the evidence and determines the correctness of the trial Judge's conclusions, but will not disturb quantum unless the judge acted on a wrong principle or the award is inordinately high or low

Reasoning

The Court restated the classic first-appeal approach: re-evaluation of the evidence on the record and determination of the correctness of the conclusions reached. On quantum, it applied Butt v Khan, holding that reversal is justified where the judge proceeded on wrong principles or the amount is an erroneous estimate. It found such an error of principle in the unjustified maximum double award, and so interfered with the damages.

p. 2

Legal principles established

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  • Summary dismissal without notice is permissible only on grounds such as gross misconduct, and absence without leave or lawful cause can justify dismissal, but only if the statutory procedure is followed
  • An employer must, before terminating employment for misconduct, explain the reasons to the employee and hear and consider any representations the employee makes
  • Compensation for unfair termination is capped at twelve months' gross wage or salary, and an award of the maximum must be justified by the trial court; an unjustified maximum award amounts to taking into account irrelevant considerations
  • An appellate court will not disturb an award of damages unless it is inordinately high or low or the judge proceeded on wrong principles or misapprehended the evidence

Court orders

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  1. 1.The appeal allowed to the extent of setting aside the entire award of Kshs. 514,776 under head (a) of the trial judgment
  2. 2.The award of Kshs. 514,776 under head (b) reduced to six (6) months' salary
  3. 3.The appellant awarded half of the costs of the appeal

Authorities

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Legislation

  • Employment Actsection 44(4)(a)
  • Employment Actsection 45(2)(b)(i)
  • Employment Actsection 49(1)(c)
  • Employment Actsection 50
  • Employment Actsection 35
  • Employment Actsection 35(3) and (4)
  • Employment Actsection 41
  • Employment Actsection 43
  • Employment Actsection 5(3)
  • Industrial Court Act (now Employment and Labour Relations Act)section 12(3)(v) and (vi)

Cases cited (7)

  • Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates
    Civil Appeal No. 161 of 1999
  • Butt V. Khan
    [1981] KLR 349
  • Mary Mutanu Mwendwa V. Ayuda Ninos De Africa Kenya
    Cause No. 50 of 2012
  • Ol Pejeta Ranching Limited v David Wanjau Muhoro
    Civil Appeal No. 42 of 2015
  • Mary Wakhabubi Wafula v British Airways PLC
    Civil Appeal No. 105 of 2007
  • G M V V. Bank of Africa Kenya Limited
    Industrial Court Cause No. 1227 of 2011
  • Eastwood & Another V. Magnox Electric PLC; McCabe V. Cornwall County Council & Others
    [2004] UKHL 35
On appeal from
Industrial Court at Nairobi (now Employment and Labour Relations Court)
Industrial Cause No. 935 of 2010
Jurisdiction invoked
First appeal to the Court of Appeal under the applicable appellate statutory framework (judgment does not state the enabling provision expressly)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (22)

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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, "Moi Teaching and Referral Hospital v James Kipkonga Kendagor [2019] KECA 833 (KLR)", Case Analysis (2019). Civil Appeal No. 159 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/833/eng@2019-03-22

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