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ELRCPartially AllowedMemorandum of Appeal dated 20th May 2008 (transferred to ELRC Nairobi)· [2016] KEELRC 268 (KLR)

Mini Bakeries (Nairobi) Limited v David Ochieng Oyugi [2016] KEELRC 268 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
18 November 2016
MNMathews Nderi Nduma
2,940 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court allowed a deceased worker's estate to sue through one administrator, but cut the damages awarded against Kenya Tea Development Authority.

What this practically means

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Executive summary

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This was a first appeal to the Employment and Labour Relations Court at Nairobi against the judgment of the Chief Magistrate's Court at Nairobi (Hon. M. K. Kiema, Resident Magistrate) delivered on 29th April 2008. The deceased, Bernard Oketch Oyugi, a driver of the appellant company, was charged with stealing by servant after gunny bags he was transporting went missing; he was acquitted, but his employment was summarily terminated without payment of terminal benefits. After his death, the respondent, one of his two administrators ad litem, was substituted and obtained awards for malicious prosecution and terminal benefits. The appellant argued the respondent lacked capacity as one of two co-administrators, that the elements of malicious prosecution were not proved, and that special damages were not specifically proved. The court distinguished the Christine Wangari Gachege and Simon Kamau Muhindi authorities, holding that a consent by the co-administrator opting out cured the capacity defect, so the respondent had locus standi. The court found the magistrate was aware of the burden and standard of proof and upheld the Kshs.50,000 award for malicious prosecution. On damages, the award of notice pay was reduced to one month (Kshs.12,500), leave allowance and leave travel allowance were set aside for want of proof, and service gratuity was retained but recalculated for the actual service period of eight years and eight months (Kshs.163,800). The appeal was therefore partly successful, with the appellant to pay trial costs and half the costs of the appeal.

Key legal issues

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01

Locus standi of one of two co-administrators to prosecute a suit on behalf of a deceased estate

Holding

The respondent, substituted with the consent of his co-administrator filed in court, had locus standi to proceed with the suit; failure to strike out was not an error

Reasoning

The court distinguished the Exparte Christine Wangari Gachege and Simon Kamau Muhindi decisions, noting those cases did not consider the effect of a consent by a co-administrator authorizing the other to act. The purpose of requiring all co-administrators is to prevent fraudulent suits, a risk eliminated where a co-administrator opts out by consent filed in court following an inter partes hearing.

p. 5
02

Whether the trial magistrate erred on the burden and standard of proof in the malicious prosecution and wrongful dismissal claim

Holding

The magistrate was aware of the legal requirements and did not err merely by failing to elaborate them elegantly; the award of Kshs.50,000 for malicious prosecution, being at the lower end of the scale, was not disturbed

Reasoning

The magistrate had cited John Ndeto Kyalo v KTDA setting out the four elements of malicious prosecution and found the appellant wrongfully initiated the complaint leading to arrest, prosecution and acquittal, and then summarily terminated employment. Lack of elegant elaboration does not amount to an error justifying appellate interference.

p. 5
03

Proof of special damages and terminal benefits

Holding

Special damages were sufficiently particularized in the further amended plaint, but the awards for notice pay were reduced to one month, leave allowance and travel allowance were set aside, and service gratuity was limited to the actual period served

Reasoning

RW1 testified the deceased was not paid terminal benefits and that the letter of appointment provided only one month's salary in lieu of notice with no leave or travel allowance. The appellant did not rebut the service gratuity claim by demonstrating NSSF registration or contribution to any pension scheme, so service gratuity for the period actually served was upheld.

p. 6

Legal principles established

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  • Where a co-administrator files a consent opting out of a suit, the requirement that all co-administrators be party to the substitution of a deceased plaintiff is satisfied and the sole prosecuting administrator has locus standi
  • An appellate court will interfere with a trial court's award only where the decision is in breach of the law or manifestly contrary to the preponderance of evidence
  • Service gratuity is payable in lieu of a pension scheme to which the employer has contributed, and is distinct from severance pay payable on redundancy

Court orders

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  1. 1.Respondent awarded payment in lieu of one (1) month notice in the sum of Kshs.12,500
  2. 2.Service gratuity awarded for the period of eight (8) years and eight (8) months in the sum of Kshs.163,800
  3. 3.Award of Kshs.50,000 for malicious prosecution upheld
  4. 4.Award in respect of leave travelling allowance and travelling allowance set aside
  5. 5.Award in respect of interest retained
  6. 6.Appellant to pay costs in respect of the trial in the lower court and half the costs of the appeal

Authorities

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Legislation

  • Penal CodeSection 281 (stealing by servant)

Cases cited (6)

  • John Ndeto Kyalo –Vs- Kenya Tea Development Authority
    [2005] eKLR
  • Nzoia Sugar Company Limited –Vs- Fungututu
    [1988] KLR
  • Republic –Vs- Nairobi City Council Exparte Christine Wangari Gachege (Suing on behalf of the Estate of Rahab Wanjiru Evans)
    2014 eKLR; Misc. Civil Application No. 103B of 2013
  • Simon Kamau Muhindi (suing as the administrator of the Estate of Esther Nyokabi Muhindi –Vs- Monica Wambui Ngugi & another
    [2014] eKLR
  • Afic Pak International Ltd. Vs. Jared Odhiambo Odero
    [2010] eKLR; Civil Appeal No. 184 of 2007
  • Thomas Mbulo –Vs- Cedars Restaurant Company Limited
    [2014] eKLR
On appeal from
Chief Magistrate's Court at Nairobi (High Court of Kenya at Nairobi)
Judgment and decree delivered on 29th April 2008
Jurisdiction invoked
Appeal transferred to the Employment and Labour Relations Court at Nairobi upon application

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mini Bakeries (Nairobi) Limited v David Ochieng Oyugi [2016] KEELRC 268 (KLR)", Case Analysis (2016). Memorandum of Appeal dated 20th May 2008 (transferred to ELRC Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/268/eng@2016-11-18

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