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ELRCDismissedCivil Case No 613 of 2006· [2019] KEELRC 1001 (KLR)

Francis Okuku Oyugi v Kenya Wine Agencies Limited [2019] KEELRC 1001 (KLR)

Employment and Labour Relations Court
26 July 2019
LNLinnet NdoloMOMaureen Onyango
1,350 words in judgment
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The bottom line

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A former Kenyan MD and his ex-employer both lost their claims because neither side backed up their money demands with actual evidence.

What this practically means

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Executive summary

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This matter originated in the High Court at Nairobi as Civil Case No 613 of 2006 and was transmitted to the Employment and Labour Relations Court following a jurisdictional ruling by Gikonyo J in February 2014. The Claimant, appointed Managing Director of the Respondent by Gazette Notice in July 2003, was sent on leave in June 2005 pending investigations into alleged financial mismanagement and had his appointment terminated in 2006. He sued for accrued salary, pay in lieu of leave, leave travelling allowance and gratuity totaling some Kshs 3.9 million, plus costs and interest. The Respondent admitted the employment but alleged negligence, abuse of office and breach of fiduciary duty, and counterclaimed for Kshs 6,222,636.01 and general damages. Because the cause of action pre-dated the Employment Act, 2007, the court approached the matter through the applicable contract of employment. The trial, hampered by the Claimant's ill health, was concluded on the pleadings, documents and the Respondent's written submissions alone. The court held that the monetary claims were in the nature of special damages requiring specific pleading and proof, and that neither party had led any evidence to support their respective claims. The Claimant's claim and the Respondent's counterclaim were both dismissed, with each party bearing their own costs. Judgment was signed on 16th July 2019 and delivered on 26th July 2019.

Key legal issues

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01

Proof of special damages

Holding

The Claimant's claims for accrued salary, benefits and gratuity were in the nature of special damages and, being unproved by evidence, failed; the Respondent's counterclaim equally failed for want of evidence.

Reasoning

The court applied the established rule that special damages must be pleaded with particularity and proved by evidence, citing Ouma v Nairobi City Council, Bonham Carter v Hyde Park Hotel and Godfrey Julius Ndumba Mbogori. Neither party led any evidence; the parties' claims therefore collapsed, notwithstanding the agreed disposal by written submissions. Judgment rested on pleadings, documents and the Respondent's submissions only.

p. 3
02

Governing law for pre-2007 employment cause of action

Holding

Since termination occurred before the Employment Act, 2007 came into effect, the applicable law is the contract of employment, not the statute.

Reasoning

The Respondent's submissions relied on Rika J's decision in Ezekiel Nyangoya Okemwa v Kenya Marine & Fisheries Research Institute, holding that for pre-Act causes of action recourse cannot be had to the Employment Act but to the contract. The Claimant cited no particular breach of contract and sought no compensation or damages for wrongful dismissal, so the court declined to traverse that ground.

p. 2

Legal principles established

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  • A claim for special damages must be specifically pleaded and proved by evidence with certainty and particularity
  • For causes of action arising before the Employment Act, 2007, recourse is to the law governing the applicable contract of employment

Court orders

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  1. 1.The Claimant's claim is dismissed
  2. 2.The Respondent's counterclaim is dismissed
  3. 3.Each party to bear their own costs
Jurisdiction invoked
Jurisdiction following transfer from the High Court pursuant to a ruling by Gikonyo J directing transmission to the Employment and Labour Relations Court (causes of action pre-dating the Employment Act, 2007; contract of employment governs)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Francis Okuku Oyugi v Kenya Wine Agencies Limited [2019] KEELRC 1001 (KLR)", Case Analysis (2019). Civil Case No 613 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1001/eng@2019-07-26

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