Francis Simiyu Tome v Bungoma County Assembly Service Board & 2 others
The bottom line
#The Court of Appeal ordered Bungoma County Assembly to pay an employee's withheld salary after an unfair dismissal, but refused to reinstate him.
What this practically means
#Executive summary
#Key legal issues
#Whether the withheld salary during interdiction was payable
Yes - a finding of no substantive reason for dismissal entitles the employee to salary withheld during the interdiction period
The trial court found the termination failed both procedural and substantive fairness tests but declined the withheld salary claim as unpleaded. The Court held that stance pedantic: payment of withheld sums follows naturally from a finding that termination failed the substantive test. The interdiction controversy itself became otiose once termination was found unlawful. The appeal succeeded on this point, with interest from filing of the suit.
Whether reinstatement ought to have been ordered
No - reinstatement is discretionary, contingent on exceptional circumstances and the section 49(4) factors, which were not established
The Court reiterated that reinstatement is not an automatic right and orders of reinstatement should be rarities. While it would not hold the litigation against the appellant, since those proceedings were a legitimate pursuit of justice later vindicated, other factors supported the trial court: breakdown of trust, over three years out of the position, no proof of efforts to secure alternative employment, and the common law bar on specific performance in personal service contracts. The test applies equally to public and private sector employment.
Whether exemplary damages were warranted
No - the employer's conduct was not oppressive, arbitrary or unconstitutional, nor calculated to yield a profit
Exemplary damages are limited to oppressive, arbitrary or unconstitutional conduct or conduct calculated to produce a profit exceeding compensation. The Judicial Review Court had found the file was retained in a common open office space, nobody ever enquired of its whereabouts or complained, and the disciplinary proceedings went beyond the file to include disclosure of confidential information and prior disciplinary issues. Characterising the employer's conduct as oppressive was too harsh, and the appellant had not shown he was unlikely to obtain alternative employment.
Whether the trial court's costs award of Kshs.150,000 was proper
No - a specific lump-sum costs award requires a stated basis or justification; the award was set aside and costs remitted for taxation
Although costs are discretionary, the discretion must be exercised judiciously. The trial court gave no explanation of how the Kshs.150,000 figure was reached, leaving unclear whether it covered the dismissed preliminary objection, the dismissed counterclaim, and earlier interlocutory cost awards. Such an order cannot be tested for reasonableness and was described as blurred. The Court set it aside and remitted taxation to the ELRC before a Judge other than J.W. Keli, J.
Legal principles established
#- Reinstatement orders must remain rarities, to be granted only in very exceptional circumstances established under the statutory guidelines in section 49(4) of the Employment Act, and the same test applies in the public as well as the private sector.
- Where a termination is found to have failed the substantive test, payment of salary withheld during an interdiction is a natural consequence of that finding, and refusal of such payment on the ground that it was not pleaded may be pedantic.
- Where a court makes a specific award of costs in a judgment, it must give some basis or justification for the figure awarded so that the exercise of discretion can be tested.
Court orders
#- 1.The appellant shall be paid all the salary withheld during the period of interdiction
- 2.The sums due to attract interest at court rates from the date the suit was filed at the ELRC until payment in full
- 3.The order of costs of Kshs.150,000.00 made by the ELRC is set aside
- 4.The matter is remitted to the ELRC for taxation of costs of the suit, to be dealt with by any Judge other than J.W. Keli, J
- 5.The appellant shall be paid half of the costs of the appeal
- On appeal from
- Employment and Labour Relations Court at Kakamega
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal from the Employment and Labour Relations Court (appeal by right under the Court's appellate jurisdiction; no specific Article cited)
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.
- Ongugo v Mombasa Parents Club (Cause E122 of 2024) [2025] KEELRC 2968 (KLR)[2025] KEELRC 2968 (KLR)30 Oct 2025
Cite this brief
#Cite this brief
Caselaw, "Francis Simiyu Tome v Bungoma County Assembly Service Board & 2 others", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1289/eng@2025-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.