Guracha v Ethics & Anti-Corruption Commission (EACC) & another (Civil Appeal E422 of 2024) [2026] KECA 1604 (KLR)
The bottom line
#Kenya's Court of Appeal refused to reinstate a dismissed EACC investigator or award extra damages, confirming unfair-dismissal claims need precise pleading and hard proof.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant established liability for discrimination and award of damages in that respect
- 2.Whether the appellant was entitled to an order of reinstatement with back payment and without loss of accrued benefits
- 3.Whether the award of 6 months' salaries for unfair termination was just
- 4.Whether the appellant was entitled to any other relief as was prayed for
- 5.Whether the appeal should be allowed with the remedies as prayed for
Key legal issues
#Whether the appellant established liability for discrimination and damages
No. The discrimination particulars were not an autonomous claim but an elaboration of the unlawful-termination claim, and fell short of pleaded facts. The only evidence was the appellant's internal memo on training needs; no comparable employees treated more favourably, and no resulting prejudice, were proved. No prima facie case arose, so the burden never shifted to the employer under section 5(7) of the Employment Act.
The court examined the amended memorandum of claim and found the 'particulars of discrimination' were styled only as an elaboration of the unlawful and unfair termination claim and fell short of facts requiring evidentiary proof. The sole evidence was the appellant's internal memo on training needs, with no proof of employees in similar circumstances treated differently or of resultant prejudice. Applying the Supreme Court's exposition in Gitau Gichuru on direct and indirect discrimination, without concrete comparators no prima facie case was made, so the section 5(7) burden-shift never engaged. The ELRC's finding was correct.
Whether the appellant was entitled to reinstatement with back payment and without loss of accrued benefits
No. The power to reinstate under section 12(3)(vii) of the ELRC Act is strictly limited to three years from dismissal; over six years had lapsed. Under section 49(4) of the Employment Act reinstatement is highly exceptional, and the appellant failed to meet the strict conditions; the relationship was strained, as shown by numerous show-cause letters.
The ELRC had declined reinstatement on the strained relationship and the time elapsed since separation from a short service period (1st January 2015 to 29th September 2017). The Court held the reinstatement power under section 12(3)(vii) of the ELRC Act is strictly limited to three years from dismissal, and over six years had passed. Under section 49(4) of the Employment Act, reinstatement or re-engagement is highly exceptional and conditioned on practicability, the employee's wishes, the state of the relationship and the common law bar on specific performance of contracts of personal service. The appellant met none of these conditions.
Whether the award of six months' salary for unfair termination was just
Yes. The award was made after weighing the section 49(4) factors - difficulty securing alternative employment, service of under three years, and the appellant's contribution shown by several show-cause letters. The discretion was exercised judicially and consistently with section 49(4) as read with section 50, so the appellate court would not interfere.
Section 49(4) of the Employment Act directs the court to consider listed factors: length of service, mitigating or aggravating factors, ability to secure alternative employment, the employee's contributory conduct, prospective service, mitigation and terminal benefits paid. The ELRC weighed the difficulty in finding alternative work, the short service of below three years, and the appellant's contribution reflected in the several show-cause letters on record. Applying Mbogo v Shah, an appellate court does not substitute its own view merely because it would have reached a different conclusion; no misdirection, ignored material or miscarriage of justice was demonstrated.
Whether the appellant was entitled to any other relief prayed for (pecuniary damages, terminal dues, future earnings)
No. Pecuniary/special damages must be specifically pleaded and strictly proved; the amended memorandum of claim contained only a bare prayer with no particulars or quantification. Future earnings to retirement and terminal dues for baggage, relocation and leave were never specifically pleaded and so never fell for determination before the ELRC or this Court.
Pecuniary or special damages are quantifiable economic losses which must be specifically pleaded and strictly proved by documents such as receipts and invoices. Beyond a bare prayer, the amended memorandum of claim contained no particulars or quantification of special damages. Claims for emoluments to retirement and terminal dues for baggage, relocation and leave were matters not specifically pleaded and therefore did not fall for determination before the ELRC or this Court. An appellate court will not delve into a ground of appeal falling outside the scope of the pleaded case and prayers made at trial.
Whether the fairness of the summary dismissal was open for determination on this appeal
No. The ELRC had already found for the appellant that the summary dismissal was unfair, the disciplinary process being flawed under sections 41 and 45 of the Employment Act and the rules of natural justice, partly because the appellant could not cross-examine crucial witnesses. Absent a cross-appeal, that finding was not open for challenge and stands as consistent with the record.
Both parties argued extensively about the fairness of the summary dismissal, but the ELRC had already found for the appellant on that issue. In the absence of a cross-appeal by the respondents challenging that finding, the issue did not fall for determination; the Court was satisfied the ELRC findings were consistent with the evidence, particularly that the appellant did not have an opportunity to cross-examine crucial witnesses at the disciplinary hearing.
Legal principles established
#- The ELRC's statutory power to order reinstatement of an unfairly dismissed employee under section 12(3)(vii) of the ELRC Act is strictly limited to three years from the date of dismissal, subject to conditions the court deems fit.
- Under section 49(4) of the Employment Act, reinstatement or re-engagement is a highly exceptional and discretionary remedy, granted only on strict conditions including practicability, the employee's wishes, the state of the employment relationship and the common law bar on specific performance of contracts of personal service.
- To establish discrimination a claimant must produce concrete comparators - demonstrating less favourable treatment than similarly situated employees on a prohibited ground - and only upon a prima facie case does the burden shift to the employer under section 5(7) of the Employment Act to justify the differential treatment.
- Pecuniary or special damages must be specifically pleaded and then strictly proved, usually by documentary evidence such as receipts and invoices.
- An appellate court will not interfere with a trial court's exercise of judicial discretion unless the trial court misdirected itself on law or fact, acted on matters it ought not to have considered, failed to consider material matters, or reached a manifestly unfair conclusion; it will not substitute its own discretion merely because it would have reached a different conclusion.
- Litigants are bound by their pleadings, and an appellate court will not entertain a ground of appeal falling outside the pleaded case and the prayers made before the trial court.
- Where there is no cross-appeal, a finding of the trial court favourable to the respondent (here, that the summary dismissal was unfair) is not open for determination on appeal.
Court orders
#- 1.The appeal is dismissed.
- 2.Each party to bear their own costs of the appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court (ELRC)
- ELRC Cause No. 1081 of 2018
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal - the judgment proceeds on the basis that 'This is a first appeal' and applies the first-appeal standard in Selle v Associated Motor Boat Co.; no specific constitutional or statutory provision conferring jurisdiction is expressly invoked in the judgment.
Relief refused
#Reinstatement to the position of Investigations Officer II with back payment and without loss of accrued benefits
The power to order reinstatement under section 12(3)(vii) of the ELRC Act is strictly limited to three years from the date of dismissal and over six years had lapsed; under section 49(4) of the Employment Act reinstatement is a highly exceptional and discretionary remedy, and the appellant did not meet the strict conditions, the relationship between the parties being strained as shown by numerous show-cause letters.
Damages for discrimination (denial of training and promotion, victimisation, age-based and differential treatment)
The discrimination particulars were pleaded only as an elaboration of the unlawful-termination claim and fell short of pleaded facts; the appellant made sweeping allegations without concrete comparators, so no prima facie case was established and the burden never shifted to the employer under section 5(7) of the Employment Act.
Compensation for full emoluments from the date of dismissal to retirement age in lieu of reinstatement / enhancement of the six months' salary award
The ELRC exercised its discretion judicially under section 49(4) as read with section 50 of the Employment Act, taking into account the predominant factors on record, and on Mbogo v Shah principles the appellate court will not substitute its own discretion where no misdirection or miscarriage of justice is shown.
Pecuniary (special) damages
Special damages must be specifically pleaded and strictly proved by documents such as receipts and invoices; other than the bare prayer, the amended memorandum of claim contained no particulars or quantification of the special damages claimed.
Terminal dues - baggage/relocation allowance, pay in lieu of leave days, and future earnings
These matters were not specifically pleaded in the amended memorandum of claim and therefore never fell for determination before the ELRC or this Court; an appellate court will not entertain a ground of appeal outside the pleaded case and prayers made at trial.
Costs
Each party to bear their own costs of the appeal - 'we hereby dismiss the appeal and order each party to bear own costs'. The ELRC's award of costs of the suit was not disturbed.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, we hereby dismiss the appeal and order each party to bear own costs.
However, this power is strictly limited to three years from the date of dismissal, and is subject to any conditions the Court deems fit to impose.
Under section 49(4) of the Act, reinstatement or re-engagement is a highly exceptional and discretionary remedy.
To establish discrimination, the appellant ought to have provided concrete comparators by demonstrating that he was treated less favorably than similarly situated employees who, unlike the appellant, enjoyed the training and promotion opportunities.
The trite law is that they must be specifically pleaded and then be strictly proved usually by relevant documents such as receipts, invoices and such like other relevant evidence.
While parties have made extensive submissions on whether the summary dismissal was unfair, we are satisfied that the issue does not fall for determination in this appeal because the ELRC already found for the appellant that the summary dismissal was unfair.
We cannot interfere if the trial court exercised the discretion judicially in accordance with the rules of reason and justice as was not whimsical, or, the decision reached by the trial court was reasonably possible because it was based on the material and evidence on record.
It is trite that litigants are bound by their respective pleadings.
Issues in the judgment
#The same Supreme Court authority is named inconsistently within the judgment - first as 'Samuel Gitau Gichuru' and later as 'Simon Gitau Gichuru'.
The amended memorandum of claim is given two different dates within the judgment - 12th February, 2021 in the narrative of the pleadings and 26th June, 2018 in the Court's re-examination.
The running header 'ELRC Cause No. 1081 of 2018' is repeatedly embedded mid-sentence throughout the text, obscuring words, and the number of this appeal in the Court of Appeal is nowhere stated in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Guracha v Ethics & Anti-Corruption Commission (EACC) & another (Civil Appeal E422 of 2024) [2026] KECA 1604 (KLR)", Case Analysis (2026). Not stated in the judgment (appeal to the Court of Appeal against the decision in ELRC Cause No. 1081 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1604/eng@2026-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.