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ELRCPartially AllowedAppeal against Kajiado CMEL No. 1 of 2020· [2022] KEELRC 37 (KLR)

Kenya Power & Lighting Company Limited v Ng’etich (Appeal E060 of 2021) [2022] KEELRC 37 (KLR)

Employment and Labour Relations Court
26 April 2022
NMNZIOKI WA MAKAU
2,520 words in judgment
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The bottom line

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Kenya's Employment Court ruled that employees cannot be awarded aggravated damages in employment cases, cancelling a Kshs. 300,000 award against Kenya Power.

What this practically means

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Executive summary

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Kenya Power & Lighting Co. Ltd appealed the judgment of the Magistrate's Court at Kajiado (CMEL No. 1 of 2020) delivered on 24th May 2021, in which Rashid Kipkoech Ng'etich's claim was allowed and the respondent was awarded Kshs. 300,000 as aggravated damages for emotional and mental torment suffered during a four-month suspension without pay. The employer advanced 14 grounds of appeal, principally that the magistrate determined unpleaded issues, awarded aggravated damages despite finding the termination fair, procedural and lawful, and misapplied section 49 of the Employment Act. The matter was disposed of by written submissions. The appellant relied on authorities confining courts to pleaded issues (Galaxy Paints, Odd Jobs v Mubia, David Sironga Ole Tukai, Gandy v Caspar Air Charters). The respondent countered that the trial court could frame its own issues under Order 15 rule 2 of the Civil Procedure Rules (Veronica Gathoni Mwangi; Nyaga Cottolengo Francis) and that aggravated damages need not be specifically pleaded (Abdulhamid Ebrahim Ahmed; Thomas Sila Nzivo). Nzioki Wa Makau J allowed the appeal. He held that aggravated damages do not lie in employment cases, that the trial magistrate's consideration of evidence went beyond the proper parameters, and that as the appellant had taken the respondent through a disciplinary process establishing cause for dismissal, there was no basis for any dues. The court substituted the magistrate's orders with an order dismissing the suit, with no order as to costs, each party bearing their own costs.

Key legal issues

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01

Availability of aggravated damages in employment disputes

Holding

Aggravated damages do not lie in employment cases, and an award of Kshs. 300,000 under that head was not payable

Reasoning

The court agreed with the appellant that aggravated damages are unavailable in employment disputes. Having found at trial that the termination was fair, procedural and lawful, and that the employer validly took the employee through a disciplinary process establishing cause for dismissal, there was no foundation for aggravated damages or any other dues. The award was therefore set aside and the suit dismissed.

p. 5
02

Scope of the first appeal - evaluation of evidence and unpleaded issues

Holding

The trial magistrate went beyond the parameters of evaluation of evidence and erred in determining matters not pleaded

Reasoning

On the appellant's 14 grounds attacking the determination of unpleaded issues (suspension without pay, emotional and mental torment, validity of disciplinary policies), the court accepted that the decision went beyond the parameters of evaluation of evidence. The trial court's determinations on unpleaded issues could not stand, warranting substitution of its orders with dismissal of the suit.

p. 5

Legal principles established

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  • Aggravated damages are not available as a remedy in employment cases
  • Where a disciplinary process establishes cause for dismissal, no dues are payable to the employee

Court orders

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  1. 1.Appeal allowed
  2. 2.Orders issued by the Learned Magistrate substituted with an order dismissing the suit
  3. 3.No order as to costs of the appeal
  4. 4.Each party to bear their own costs

Authorities

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Legislation

  • Employment ActSection 49
  • Civil Procedure RulesOrder 15 rule 2

Cases cited (15)

  • Galaxy Paints Co Ltd v Falcon Guards Ltd
    [2000] 2 EA 385
  • Ann Wairimu Wanjohi v James Wambiru Mukabi
    [2021] eKLR
  • Sheikh vs Sheikh & Others
    [1991] LLR 2219 (CAK)
  • Odd Jobs v Mubia
    [1970] EA 476
  • David Sironga Ole Tukai v Francis Arap Muge & 2 Others
    [2014] eKLR
  • Gandy v Caspar Air Charters Ltd
    [1956] 23 EACA, 139
  • George W. Omondi v Guilders International Bank Limited
    [2015] eKLR
  • D. K. Njagi Marete v Teachers Service Commission
    [2020] eKLR
  • Donald C. Avude v Kenya Forest Service
    [2015] eKLR
  • Veronica Gathoni Mwangi & Another v Samuel Kagwi Ngure & Another
    [2020] eKLR
  • Nyaga Cottolengo Francis v Pius Mwaniki Karani
    [2017] eKLR
  • Abdulhamid Ebrahim Ahmed v Municipal Council of Mombasa
    [2004] eKLR
  • Thomas Sila Nzivo v Bamburi Cement Limited
    [2014] eKLR
  • Joseph Henry Ruhui v Attorney General
    Nairobi HCCA No. 701 of 2001
  • Butt v Khan
    (1977) 1 KAR
On appeal from
Kajiado Magistrates' Court (CMEL)
CMEL No. 1 of 2020
Jurisdiction invoked
First appeal from the Magistrates' Court in an employment cause (CMEL No. 1 of 2020)

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, "Kenya Power & Lighting Company Limited v Ng’etich (Appeal E060 of 2021) [2022] KEELRC 37 (KLR)", Case Analysis (2022). Appeal against Kajiado CMEL No. 1 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/37/eng@2022-04-26

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