Bomas of Kenya v Thiriku
The bottom line
#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
#Executive summary
#Key legal issues
#Whether a new issue (propriety of consolidation) could be raised for the first time in submissions on appeal
It could not; the issue was not in the memorandum of appeal, was not canvassed at trial, and no leave was sought.
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.
Whether the respondent's employment had been terminated before the claim was heard
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.
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.
Whether the award of Kshs. 500,000 for unfair labour practices was justified
Yes; the disciplinary process was procedurally flawed in multiple respects and the award was not excessive.
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed with costs
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Murimi v Institute of Human Resource Management (IHRM) (Cause 281 of 2020) [2023] KEELRC 2729 (KLR)[2023] KEELRC 2729 (KLR)31 Oct 2023applied
Cite this brief
#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.