Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal No. 240 of 2016· [2020] KECA 694 (KLR)

Leonard Gethoi Kamweti v National Bank of Kenya Limited [2020] KECA 694 (KLR)

Court of Appeal of Kenya
8 May 2020
Martha Karambu KoomeM. K. KoomePKP. O. KiageAMA. K. Murgor
6,114 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal dismissed both appeals, keeping a 12-month salary award for unfair retirement but refusing extra damages for discrimination, defamation or malicious prosecution.

What this practically means

#

Executive summary

#
Two consolidated first appeals arose from a judgment of Wasilwa J. in ELRC No. 273 of 2014, which found that National Bank of Kenya had unfairly and unjustifiably terminated the employment of Leonard Gethoi Kamweti, a company secretary retired early at age 51 under the Bank's Human Resource Manual, and awarded him twelve months' salary (Kshs 8,050,728), a certificate of service, costs and interest. The employee appealed for additional remedies: exemplary damages, damages for differential treatment and constitutional violations, defamation and malicious prosecution arising from a complaint the Bank lodged with ICPSK. The Bank cross-appealed against the maximum award, contending the employee had accepted a negotiated early retirement package and that the award lacked reasons. The Court of Appeal, in a single judgment of the court, framed four issues and dismissed both appeals. It held that exemplary damages are confined to the Rookes v Barnard/Halsbury categories - oppressive, arbitrary or unconstitutional state action, profit-motivated conduct, or statutory authorisation - none of which was established, since the claim arose from an employment contract and the employee willingly accepted the retirement package. The differential-treatment and constitutional claims failed for want of proof of loss and of comparator similarity. Defamation and malicious prosecution failed because the defamatory capacity of the letter was not proved and a complaint to a professional body is not a criminal prosecution. The Court affirmed the twelve months' salary award despite endorsing the requirement that trial judges give reasons for maximum awards, noting the employee's long unblemished service and diminished employability. Both appeals were dismissed with no order as to costs.

Key legal issues

#
01

Entitlement to exemplary damages for termination of employment

Holding

Not entitled; the claim arose from contract and no arbitrariness or profit motive was proved

Reasoning

The Court applied the established categories from Halsbury's and Rookes v Barnard: exemplary damages lie only for oppressive, arbitrary or unconstitutional action by government servants, profit-motivated conduct, or statutory authorisation. The appellant's claim arose from an employment contract; he accepted the early retirement package without objection, and no evidence of extreme harassment or trumped-up charges existed.

p. 5
02

Damages for differential treatment/constitutional violation

Holding

Claim fails; differential treatment not proved

Reasoning

The appellant had to prove loss suffered from the alleged constitutional breaches and that he was similarly circumstanced to the comparators (Mr Ismail and Mr Mworia). The affidavit adducing new evidence on appeal lacked leave under Rule 29. Pay differentials are justified by levels of responsibility, expertise and skill.

p. 6
03

Defamation and malicious prosecution

Holding

Both grounds fail

Reasoning

The appellant did not show how the letter was defamatory or that it lowered his estimation in society. He did not deny disseminating the board meeting recording. A complaint to ICPSK, a professional disciplinary body, is not a criminal prosecution, so the tort of malicious prosecution was not made out.

p. 6
04

The 12 months' salary award and lack of reasons

Holding

Award left undisturbed

Reasoning

While endorsing the principle in United States International University v Eric Rading Outa that trial judges must give reasons for maximum awards, the Court, as a first appellate court, re-evaluated the evidence. It found the appellant was pushed out for pursuing an LSK complaint, had long unblemished service, and was unlikely to find comparable banking employment, so the trial Judge's discretion would not be interfered with.

p. 6

Legal principles established

#
  • Exemplary damages are available only in the limited categories of oppressive, arbitrary or unconstitutional action by servants of government; conduct calculated to profit the defendant beyond compensation payable; or where authorised by statute - and are not available for breach of an employment contract absent such proof
  • The fact that an employer pays one employee more than another does not of itself amount to discrimination; pay differentials are justified by differing levels of responsibility, expertise and skill unless similarly circumstanced employees are treated differently
  • A party seeking compensatory damages for constitutional violations must prove the loss or damage actually suffered
  • Writing a complaint to a professional body is not malicious prosecution, which requires a criminal prosecution
  • On a first appeal the Court of Appeal must re-evaluate the evidence and may draw its own conclusions, though with due allowance for not having seen or heard the witnesses

Court orders

#
  1. 1.The appeal by the Bank (Civil Appeal No. 299 of 2017) is dismissed
  2. 2.All the grounds of appeal by the appellant are dismissed
  3. 3.No order as to costs - each party bears its own costs

Authorities

#

Legislation

  • Constitution of KenyaArticles 27(4), 33(3), 41(1), 50(1)
  • Constitution of KenyaArticle 23(3)(e)
  • Employment ActSection 50; Section 50 (m)
  • Defamation ActSection 3
  • Employment and Labour Relations Act (Procedural Rules 2010)unnamed (bar on exemplary/punitive costs in employment matters, as submitted)
  • Court of Appeal RulesRule 29
  • ILO Convention 111unnamed (discrimination in employment or occupation)

Cases cited (17)

  • Mak Onyango vs. AG and Another
    [2013] 1 EA at 353
  • Pravin Bowry vs. EACC
    ELRC No 1168 of 2012 [2013] eKLR
  • Harris vs. Digital Pulse PTY Ltd
    [2003] 197 ALR 626
  • Cassell & Co Ltd vs. Broome
    [1972] AC 1027
  • Transport & General Workers Union & Another vs. Bayete Security Holdings
    (J2512/98)
  • Mbowa vs. East Mengo District Administration
    [1972] EA 352
  • United States International University vs Eric Rading Outa
    [2016] eKLR
  • CMC Aviation Ltd vs Captain Mohammed Noor
    [2015] eKLR
  • Mary Njoki vs. John Kinyanjui Mutheru
    [1985] eKLR
  • S. M. v E. N. B.
    [2015] eKLR
  • Kenya Revenue Authority vs. Menginya Salim Murgani
    [2010] eKLR
  • Herderson vs. Merrett
    (1994) 2 ALL ER 506
  • Obongo vs. Municipal Council of Kisumu
    (1971) EA at page 91
  • Rookes vs Barnard
    [1964] I ALL ER 367
  • Selle and Another V Associated Motor Boat Company Ltd and Others
    [1968] 1 EA 123 (CAZ)
  • Watt v Thomas
    [1947] AC 484
  • Abdul Hameed Saif v. Ali Mohamed Sholan
    (1955), 22 E.A.C.A. 270
On appeal from
Employment and Labour Relations Court of Kenya at Nairobi
ELRC No. 273 of 2014
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules (appeal from the Employment and Labour Relations Court)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Leonard Gethoi Kamweti v National Bank of Kenya Limited [2020] KECA 694 (KLR)", Case Analysis (2020). Civil Appeal No. 240 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/694/eng@2020-05-08

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