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ELRCPartially AllowedCivil Appeal (formerly High Court Civil Appeal arising from Senior Resident Magistrate's Civil Case No. 113 of 2008, Limuru)· [2018] KEELRC 2225 (KLR)

Bata Shoe Company (K) Limited v Felix John Bota Motonu [2018] KEELRC 2225 (KLR)

Employment and Labour Relations Court (transferred from the High Court)
18 January 2018
NMNzioki wa MakauRSRadido Stephen
1,399 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 confirmed that general damages are not available in employment disputes, and set aside a Kshs. 150,000 award.

What this practically means

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Executive summary

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This was an appeal from the decision of Hon. A. O. Aminga, Resident Magistrate, in Limuru Senior Resident Magistrate's Civil Case No. 113 of 2008, in which Felix John Bota Motonu, a former employee of Bata Shoe Company (K) Ltd, was awarded Kshs. 170,670.35 in terminal benefits plus general damages of Kshs. 150,000/- for unlawful dismissal and loss of property, with interest and costs. The appellant raised four grounds, all attacking the award of general damages, contending that general damages were not available for breach of an employment contract under the repealed Employment Act (Cap 226), and that the claim for lost property was one for special damages requiring specific pleading and proof. The respondent supported the award and sought its enhancement. The court, transferred from the High Court to the Employment and Labour Relations Court, held that general damages are not a relief a labour court can grant, as both the repealed and current Employment Acts contain no provision for them. It further held that the claim for lost property was one in special damages requiring particulars and proof, none of which was adduced. The court refused to entertain the appellant's counter-claim arguments, as no such grounds appeared in the Memorandum of Appeal. The appeal was allowed in part: the Kshs. 150,000/- general damages award was set aside, the balance of the award with interest stood, the deposited sum was ordered released to the appellant's advocates, and each party bore its own costs of the appeal.

Key legal issues

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01

Award of general damages for summary dismissal and loss of property

Holding

The Magistrate erred in awarding Kshs. 150,000/- as a global sum of general damages; the award is set aside as the Employment Act (repealed Cap 226 and the 2007 Act) makes no provision for general damages.

Reasoning

The court held that contracts of service are special and courts exercising jurisdiction over employment matters are confined to employment law. Neither the repealed Employment Act (Cap 226) nor the 2007 Act provides for general damages. The claim for lost property was one for special damages which had to be specifically pleaded and proved with evidence such as receipts and invoices; no such evidence was led, rendering the award tenuous and liable to be reversed.

p. 2
02

Scope of grounds on appeal

Holding

A party cannot advance at the hearing of an appeal grounds not contained in the Memorandum of Appeal; the appellant's bid to have its counter claim awarded could not stand.

Reasoning

Under the Civil Procedure Act, only the grounds in the Memorandum of Appeal may be argued. The four grounds all targeted the award of general damages. The appellant's submissions seeking judgment on its counter claim were therefore outside the appeal and could not be entertained.

p. 2

Legal principles established

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  • General damages are not a relief a labour court in Kenya can grant; employment disputes are confined to the provisions of employment law, which contains no provision for general damages.
  • A claim for loss of property in an employment dispute is in the nature of special damages requiring specific particulars and proof of each allegation.

Court orders

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  1. 1.The appeal is successful to the extent that the learned Magistrate's decision awarding Kshs. 150,000/- as general damages is set aside
  2. 2.The award of Kshs. 20,670.35 cost and interest at court rates stands
  3. 3.The sum of Kshs. 150,000/- held by the Registrar of the High Court under Deposit Receipt No. 0096804 be released to the Appellant's Advocate M/s Obura-Mbeche & Co. Advocates
  4. 4.Each party in the Appeal will bear their own costs

Authorities

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Legislation

  • Civil Procedure Act
  • Employment Act (Repealed) Cap 226
  • Employment Act, 2007

Cases cited (3)

  • Allan Nyamu v Insurance Training and Education Registered Trustees and Another
    [2017] eKLR
  • Jackline Kiaraho v Co-operative Bank of Kenya
    [2017] eKLR
  • Peter Onyango Onyiego v Kenya Ports Authority
    [2000] eKLR
On appeal from
Senior Resident Magistrate's Court, Limuru
Civil Case No. 113 of 2008
Jurisdiction invoked
Appeals under the previous regime of laws lay to the High Court; the file was transferred to this court on 6th May 2016 by Sergon J.

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, "Bata Shoe Company (K) Limited v Felix John Bota Motonu [2018] KEELRC 2225 (KLR)", Case Analysis (2018). Civil Appeal (formerly High Court Civil Appeal arising from Senior Resident Magistrate's Civil Case No. 113 of 2008, Limuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2225/eng@2018-01-18

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