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Court of AppealPartially AllowedNairobi ELRC No 2211 of 2012 (appeal therefrom)· [2023] KECA 851 (KLR)

Ngei v Viljoen & 2 others (Civil Appeal 325 of 2019) [2023] KECA 851 (KLR)

Court of Appeal
7 July 2023
HOHannah OkwenguHOH. A. OmondiJMJ. Mativo
3,123 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed old employment dismissals get only notice pay, but ordered costs for a partially successful claimant.

What this practically means

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Executive summary

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This Court of Appeal judgment (Okwengu, Omondi and Mativo JJA, delivering a single joint judgment at Nairobi on July 7, 2023) determined a first appeal from the ELRC at Nairobi, whose judgment of July 13, 2018 had disposed of a claim of unlawful summary dismissal and breach of contract filed on June 5, 2006. The trial court had held that the repealed Employment Act Cap 226, then in force, gave it no jurisdiction to question the validity of the reasons for termination; it ordered payment of three months' salary in lieu of notice, dismissed the respondents' counterclaim for want of evidence, and directed each party to bear its own costs. Before the Court of Appeal, the appellant advanced 38 condensed grounds, principally that the judge erred in finding lack of jurisdiction while still determining the merits, and that the denial of costs was unexplained. The court applied its first-appeal duty under rule 31 of the Court of Appeal Rules, 2022, and reaffirmed the trial court's holdings: Cap 226 contained no compensation for unfair termination, the Employment Act 2007 could not apply retrospectively to a 2001 dismissal, and damages were limited to pay in lieu of notice. On costs, however, the court found the trial judge's unexplained denial of costs to a partially successful appellant erroneous, applying section 27 of the Civil Procedure Act. The appeal was dismissed on all grounds except costs; the trial costs order was set aside and substituted with an award to the appellant of half the costs of the suit, and the appellant was awarded 25 percent of the costs of the appeal.

Key legal issues

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01

Jurisdiction to award compensation for unfair termination under the repealed Employment Act Cap 226

Holding

The trial court correctly found it lacked jurisdiction to question the validity of the reasons for termination, and the repealed Act contained no provision for compensation for unfair termination; only salary in lieu of notice was payable.

Reasoning

The suit was filed when Cap 226 applied, which lacked a compensation provision equivalent to section 49 of the current Act. The appellant had also admitted being invited to a disciplinary inquiry and declining to attend. Section 47(1) of the repealed Act routed complaints of summary dismissal to a labour officer in the first instance, which the appellant never pursued.

p. 5
02

Retrospective application of the Employment Act 2007

Holding

The Employment Act 2007 could not apply retrospectively to a termination occurring in 2001.

Reasoning

At the time of filing suit in 2001 the Employment Act 2007 had not come into effect. The court held that its compensation provisions could not govern the claim, confirming the trial court's reading of the applicable repealed legislation.

p. 5
03

Discretion on costs where a party partially succeeds

Holding

The trial judge erred in denying the appellant costs without explanation despite his claim partially succeeding; the order was set aside and half the costs of the suit awarded to the appellant.

Reasoning

Costs follow the event under section 27 of the Civil Procedure Act, though costs remain a matter of judicial discretion. A discretion exercised in silence, without reasons for denying a partially successful party costs, is erroneous and liable to be interfered with on appeal.

p. 6

Legal principles established

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  • The Employment Act 2007 provisions on compensation for unfair termination do not apply retrospectively to terminations governed by the repealed Employment Act Cap 226
  • A trial court's discretion on costs must be exercised judiciously and with reasons; a denial of costs to a partially successful party without explanation is erroneous
  • On a first appeal, the Court of Appeal has a primary duty to evaluate the evidence on the record and come to its own independent conclusion

Court orders

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  1. 1.Appeal dismissed on all issues except the issue of costs
  2. 2.Order on costs in the trial court set aside and substituted with an order awarding the appellant half the costs of the suit
  3. 3.Appellant awarded 25 percent of the costs of the appeal

Authorities

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Legislation

  • Employment Act (Cap 226) (repealed)section 50
  • Employment Act (Cap 226) (repealed)sections 49 and 49(1)
  • Employment Act (Cap 226) (repealed)sections 43(1) and (2)
  • Employment Act (Cap 226) (repealed)section 47(1)
  • Employment Act (Cap 226) (repealed)sections 17 and 5(4b) (as cited by the appellant)
  • Employment Act 2007
  • Civil Procedure Actsection 27
  • Court of Appeal Rules, 2022rule 31
  • Employment and Labour Relations Court Rules (2016)rule 14(7)

Cases cited (9)

  • Nduta Mbile v John Gachau Gitonga, Civil Appeal No 299 of 2015
  • Kenpipe Co-operative Savings and Credit Society Ltd v Daniel Githinji Waiganjo, Civil Appeal No 2023 of 2015
  • Maithene Malindi Enterprises Ltd v Kaniki Karisa Kaniki and 2 Others, Civil Appeal No 68 of 2016
  • Josiah Wanjohi v National Bank, Cause No 1109 of 2014
  • Farah Gullet Awad vs. CMC Motors Group Ltd, CA No 206 of 2015
  • Ombonya vs. Gailey Roberts
    [1974] EA, 522
  • Walter Muse Anyanje v Hilton (K) Ltd and Anor, CA No 269 of 2003
  • Abok James Odera t/a A.J. Odera & Associates vs. John Patrick Machira t/a Machira & Company Advocates
    [2013] eKLR
  • James Koskei Chirchir vs. Chairman Board of Governors Eldoret Polytechnic
    [2011] eKLR
On appeal from
Employment and Labour Relations Court (High Court at Nairobi)
Nairobi ELRC No 2211 of 2012 (suit filed June 5, 2006)
Jurisdiction invoked
First appeal under rule 31 of the Court of Appeal Rules, 2022

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Ngei v Viljoen & 2 others (Civil Appeal 325 of 2019) [2023] KECA 851 (KLR)", Case Analysis (2023). Nairobi ELRC No 2211 of 2012 (appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/851/eng@2023-07-07

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