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Court of AppealDismissedCivil Appeal 379 of 2019· [2022] KECA 795 (KLR)

Bomas of Kenya v Thiriku

Court of Appeal
24 June 2022
6,808 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that employers must follow their own disciplinary rules, and an unserved termination letter legally means nothing.

What this practically means

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Executive summary

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The respondent, a Marketing Officer employed by Bomas of Kenya from 2007, sued her employer in the Employment and Labour Relations Court alleging unfair administrative action, gender discrimination, harassment and bias. After a 3-day absence in September 2013 she was issued a show cause letter, subjected to a disciplinary process, and a termination letter was prepared; however, a court order of 14th October 2013 restrained the disciplinary process and the termination letter was never served. She was later sent on compulsory leave in December 2014. Wasilwa, J. found the disciplinary process procedurally flawed, contrary to the employer's own HR Manual, and held the conduct amounted to unfair labour practices, awarding Kshs. 500,000 in damages, a permanent injunction and a declaration. Bomas appealed on three fronts: that the judge considered unpleaded facts, that the employment relationship had already ended by termination, and that damages were unpleaded and unsupported. The Court of Appeal framed three issues and dismissed the appeal in its entirety. It held the consolidation challenge was improperly raised for the first time in submissions; that the termination letter had no legal effect because it was never served and the court order stood; and that the award of damages was justified given the multiple departures from the employer's own disciplinary manual and could not be disturbed under Butt v Khan. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Whether a new issue (propriety of consolidation) could be raised for the first time in submissions on appeal

Holding

It could not; the issue was not in the memorandum of appeal, was not canvassed at trial, and no leave was sought.

Reasoning

The Court relied on its own precedent that Rule 104 of the Court of Appeal Rules prohibits arguing grounds not set out in the memorandum of appeal without leave. Submissions must be founded on issues before the court. The appellate system restricts the appellate court to issues canvassed and decided at trial, otherwise it becomes a trial court in disguise.

p. 8
02

Whether the respondent's employment had been terminated before the claim was heard

Holding

No; the termination letter was never served and the court order restraining disciplinary action remained in force, so the employment relationship was intact throughout the trial.

Reasoning

Both the termination letter and the court order were issued on 15th October 2013, but RW1 admitted the order was received on 16th October and the termination letter was never served. The Nduma ruling only found contempt not proved; the order was never reviewed or set aside and thus remained effective.

p. 9
03

Whether the award of Kshs. 500,000 for unfair labour practices was justified

Holding

Yes; the disciplinary process was procedurally flawed in multiple respects and the award was not excessive.

Reasoning

The employer departed from its own HR Manual: no oral reprimand after 2 days' absence, 7 instead of 14 days to respond to show cause, the Finance Manager instead of the General Manager chaired the committee, compulsory leave was not contemplated in the manual, and the process contravened a court order. Applying Butt v Khan, the appellate court would not disturb the award.

p. 10

Legal principles established

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  • A party may not raise a new ground of appeal in submissions without leave of the Court where it was not raised in the memorandum of appeal or canvassed at trial.
  • An appellate court will be slow to interfere with an award of damages unless the trial judge acted on wrong principles or the award is so excessive or low that no reasonable court would make it.
  • Unfair labour practices are not exhaustively defined; the Constitution, labour legislation, common law, treaties and an employer's own code of conduct collectively inform whether conduct is an unfair labour practice.

Court orders

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  1. 1.The appeal is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 23(3)
  • Employment ActSection 5
  • Employment ActSection 41
  • Employment ActSection 45(2)(c)
  • Civil Procedure RulesOrder 11 Rule 3(1)(h)
  • Court of Appeal RulesRule 104
  • Bomas of Kenya HR ManualClauses 10.11, 10.13, 10.14, 10.15
  • International Covenant on Economic, Social and Cultural RightsArticles 6 and 7
  • Trade Disputes Act Cap 234 (Laws of Kenya)

Cases cited (13)

  • Selle and another v Associated Motor Boat Company Limited and others
    [1968] 1 EA 123

    Duty of a first appellate court to reconsider and evaluate evidence and draw its own conclusions.

  • Republic v Tribunal of Inquiry to Investigate the Conduct of Tom Mbaluto & others Ex-Parte Tom Mbaluto
    [2018] eKLR

    Prohibition on arguing grounds of appeal not in the memorandum without leave; submissions cannot change the nature of a case.

  • George Owen Nandy v. Ruth Watiri Kibe
    CA No. 39 of 2015

    Discretion of the Court to allow a new point on appeal.

  • Openda v. Ahn
    [1983] KLR 165

    Discretion to allow a new point on appeal.

  • North Staffordshire Railway Co. v. Edge
    [1920] AC 254

    Appellate system restricts appeal to issues canvassed and decided by the trial court.

  • National Education Health & Allied Workers Union (NEHAWU) v University of Cape Town and Others
    [2002] ZACC 27

    Fair labour practice is incapable of precise definition; fairness is a value judgment depending on circumstances.

  • Council of Mining Unions v Chamber of Mines of SA
    (1985) 6 ILJ 293 (IC)

    Conduct which is lawful may nevertheless constitute an unfair labour practice.

  • Media Workers Association of South Africa and Others v Press Corporation of South Africa Ltd.
    [1992] ZASCA 149

    Whether a labour practice is unfair is a question of discretion and value judgment, not strictly law or fact.

  • Elizabeth Washeke And 62 Others V Airtel Networks (k) Ltd & another
    [2013] eKLR

    Assessment of fairness involves weighing the respective interests of the parties and the public.

  • Butt vs Khan
    (1981) KLR 349

    Appellate court should be slow to interfere with assessment of damages unless wrong principles or unreasonable award.

  • Barclays Bank of Kenya Ltd & another v Gladys Muthoni & 20 others
    [2018] eKLR

    Nature of compensatory damages in employment; judicial restraint on exceeding 12 months' salary cap.

  • Abraham Gumba vs Kenya Medical Supplies Authority
    [2014] eKLR

    Employment relationship is special, justifying capping of compensatory damages; coalesced awards may exceed cap.

  • Eastwood & Another vs Magnox Electric PLC; McCabe vs Cornwall County Council & Others
    [2004] UKHL 35

    Parliament's balance of interests in capping compensatory awards for unfair dismissal.

On appeal from
Employment and Labour Relations Court at Nairobi
Cause No. 1652 of 2013 consolidated with Petition No. 26 of 2015
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules against the judgment of the Employment and Labour Relations Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Bomas of Kenya v Thiriku", Case Analysis (2022). Civil Appeal 379 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/795/eng@2022-06-24

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