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ELRCDismissedSuit No 1595 of 2013· [2018] KEELRC 2324 (KLR)

Emily Gumba v British Council [2018] KEELRC 2324 (KLR)

Employment and Labour Relations Court
25 January 2018
4,368 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court dismissed both an unfair termination claim and an employer's Kshs. 3 million counterclaim because neither side could prove their case with documents.

What this practically means

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Executive summary

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The Claimant, employed as a programme and business manager on fixed term contracts expiring 31st July 2013, sued for unfair suspension and termination, claiming reinstatement, general and exemplary damages, costs and interest. She alleged she was suspended on 15th July 2013 without a hearing over allegations of gross negligence arising from an audit, was denied access to her office, laptop, emails and files, and was subjected to endless disciplinary sessions even after her contract expired. The Respondent countered that the contract lapsed by effluxion of time with full terminal dues paid, and counterclaimed for Kshs. 359,300 in unaccounted cash advances, later amended to add Kshs. 2,659,480 exposed by an audit. Both parties testified and filed submissions relying on competing authorities. The court found that the Claimant, deprived of her laptop, office and email access, could hardly mount a defence, yet she also could not satisfactorily answer the audit queries; equally, the Respondent attached no expense applications or documentation linking the alleged losses specifically to the Claimant, who was merely the titular head of the projects, and other implicated employees had been dismissed. The court held that neither party proved their case on a balance of probabilities, dismissed both the claim and the counterclaim, and ordered each party to bear their own costs. It also declared, as a point of guidance, that general and exemplary damages have no place under the Employment Act, Section 49 compensation being purely compensatory. The judgment, dated 23rd January 2018, was delivered on 25th January 2018 by Radido J, the file having been handled by Nzioki wa Makau J.

Key legal issues

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01

Fairness of the disciplinary process and termination

Holding

Neither party proved their case; the Claimant could not be faulted where she was deprived of access to documents, laptop, office and emails needed to answer the allegations, but the court also found she could not properly answer the queries raised

Reasoning

The court noted the Claimant was suspended during an audit, denied full access to her files, system and emails, and lacked documentation to mount a defence, yet on the balance she also could not answer straightforward queries. The Respondent produced no audit-linked expense applications tying the losses to the Claimant, and other implicated employees had been dismissed, making responsibility unclear. Both claims therefore failed.

p. 5
02

Availability of general and exemplary damages in employment claims

Holding

Such damages are not available under the Employment Act; Section 49 compensation is purely compensatory

Reasoning

The court observed an increasing trend of such claims and expressly stated, for future guidance, that neither general nor exemplary damages have a statutory basis in employment disputes, distinguishing such compensation from damages awards in contract or tort.

p. 6
03

Proof of the Respondent's counterclaim for unaccounted funds

Holding

The Respondent failed to prove the counterclaim as no expense applications or audit documentation attributed the losses specifically to the Claimant

Reasoning

The court found no document in the form of the Claimant's expense application was attached to the sums alleged lost. Since the projects could have been run by the Claimant or staff under her, she being the titular head, fault could not be attributed to her without documentation. Other dismissed employees might have been responsible, so the counterclaim failed.

p. 6

Legal principles established

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  • There is no provision for an award of general damages or exemplary damages under the Employment Act; Section 49 compensation is compensatory and not an award of general damages
  • A claimant and a counterclaiming party each bear the burden of proving their respective cases on a balance of probabilities; failure by both results in dismissal of both

Court orders

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  1. 1.Dismissal of the Claimant's claim
  2. 2.Dismissal of the Respondent's counterclaim
  3. 3.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Employment ActSection 49

Cases cited (9)

  • Principal and BOG Machakos Teachers College v. Wambua Muange
    [2016] eKLR
  • Donald C. Avude v. Kenya Forest Service
    [2015] eKLR
  • Samuel Chacha Mwita v. Kenya Medical Research Institute
    [2014] eKLR
  • Banking, Insurance & Finance Union (Kenya) v. Commercial Bank of Africa
    [2015] eKLR
  • Margaret A. Ochieng v. National Water Conservation & Pipeline Corporation
    [2014] eKLR
  • Abdulhamid Ebrahim Ahmed v. Municipal Council of Mombasa
    [2004] eKLR
  • Dalmas B. Ogoye v. KNTC Ltd
    [1996] eKLR
  • Alphonce Maghanga Mwachanya v. Operation 680 Limited
    [2013]
  • Lawrence Onyango Oduori v. Kenya Commercial Bank Limited
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (claim filed under the Employment Act; specific enabling provision not stated in the judgment)

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, "Emily Gumba v British Council [2018] KEELRC 2324 (KLR)", Case Analysis (2018). Suit No 1595 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2324/eng@2018-01-25

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