Harrison Bigiyo Clement v Premier Mills Limited [2018] KEELRC 367 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether damages for wrongful termination were recoverable
No - damages were not pleaded, and the repealed Employment Act then applicable made no provision for general damages for wrongful termination
The plaint dated 13th January 2007 sought unpaid salary, unpaid leave and terminal benefits, not damages. Terminal benefits are special damages that must be pleaded and are awardable per the contract; general damages are discretionary. The court adopted the reasoning in Dorcas Kemunto Wainaina v. IPAS that the statute provides primary remedies which do not include general damages.
Whether the plaintiff proved his case on a balance of probabilities
No - the suit fell below the standard of proof; the appellant admitted he was a contractual employee on a 3-month term and produced no receipts or evidence of unpaid leave
The appellant admitted on cross-examination that he was not a permanent employee but a contractual employee engaged for a 3-month term. The contract adduced ran from 1st March 2005 to 31st May 2005. Only two pay slips were produced; no receipts proved the special damages and no evidence showed 10 years of untaken leave.
Whether the trial magistrate found that the dismissal was admitted by the defendant
Yes - contrary to the appellant's ground, the magistrate did make such a finding, holding the dismissal undisputed
The trial magistrate found the defendant's evidence that the plaintiff did not return after 23rd May 2005 untruthful, and that DW1 lacked authority to hire and fire. The plaintiff's evidence of being fired was undisputed, so the magistrate did find the dismissal admitted - but that did not save the unproven quantum claims.
Legal principles established
#- In a first appeal the court is under obligation to consider all the facts and arrive at its own independent determination
- Terminal benefits are special damages that must be pleaded and are awarded according to the contract, while damages are awarded at the discretion of the court
- The threshold of proof in civil cases is on a balance of probabilities
Court orders
#- 1.The appeal is dismissed
- 2.There shall be no orders for costs in the appeal since the respondent did not actively participate in the appeal
- On appeal from
- Chief Magistrate's Court
- CMCC No. 1062 of 2007
- Jurisdiction invoked
- First appellate jurisdiction over the Chief Magistrate's Court judgment (first appeal from CMCC No. 1062 of 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Harrison Bigiyo Clement v Premier Mills Limited [2018] KEELRC 367 (KLR)", Case Analysis (2018). ELRC Appeal from CMCC No. 1062 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/367/eng@2018-12-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.