Wamithi v Karanja t/a Kittony Maina Karanja Advocates (Cause 339 of 2014) [2023] KEELRC 740 (KLR)
The bottom line
#A Kenyan court dismissed an advocate's claim for unfair termination and unpaid commissions because she followed her contract's notice clause and failed to prove her figures.
What this practically means
#Executive summary
#Key legal issues
#Nature of the relationship between the parties
The parties were in a contract of service, as previously determined by O N Makau J on May 08, 2015; the initial 2-year contract ended by effluxion of contractual term
The Court adopted the prior ruling of O N Makau J finding an employment relationship under the Employment Act, 2007 and not a partnership under the Partnership Act cap 29. The associate contract of September 1, 2009 ran for two years to August 31, 2011, ending by effluxion of term. Any claim for unpaid commissions under that initial contract would be a continuing injury time-barred under section 90 of the Employment Act.
Whether the termination was unfair
The termination was not unfair; it was by mutual consent and in accordance with the contractual clause requiring three months' written notice
Clause 2.2 permitted either party to opt out voluntarily and clause 11.1(a) permitted termination on not less than three months' notice. The respondent served a three months' notice by email on July 23, 2013; the claimant served the notice period to October 23, 2013 and the separation was not acrimonious. Section 35 of the Employment Act permits agreed notice; termination within contractual provisions was fair, so the declaration and damages prayers collapsed.
Whether the commission claims were established
The commission claims failed because the claimant did not plead particulars or strictly prove the liquidated claims, including the contractual deductions of VAT and disbursements
The claim was in the nature of liquidated damages requiring specific particularisation and strict proof of income, deductions and the quarter-day on which commission fell due. Neither the statement of claim nor the witness statement did so; the Tables introduced in submissions were belated attempts at pleading that denied the respondent a fair chance to respond, and the final accounts statement failed to segregate the Fixed Remuneration Partnership Agreement period.
Whether the respondent should be compelled to disclose the firm's income
The prayer for full disclosure was declined because the particulars of pending invoices and ongoing matters were within the claimant's own knowledge as joint manager of the Mombasa Branch
Under clause 8(iv) the claimant had access to the books of account and was an authorised signatory of the Mombasa Branch accounts, and the parties jointly managed the Branch. Having not pleaded the particulars of pending invoices or ongoing matters as at separation, the claimant could not shift the burden to the respondent to disclose income on unpleaded matters. Pleading particulars was a precondition to any disclosure order.
Legal principles established
#- Parties to a contract of service are entitled to agree on a termination notice, and termination within the contractual notice provisions is not unfair termination
- A claim for liquidated damages/special damages founded on contractual commission provisions must be specifically particularised in the pleadings and strictly proved; particulars introduced for the first time in submissions amount to belated pleading
Court orders
#- 1.Judgment entered for the respondent against the claimant for dismissal of the suit
- 2.Each party to bear own costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment relationship relationship found by O N Makau J on May 08, 2015)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wamithi v Karanja t/a Kittony Maina Karanja Advocates (Cause 339 of 2014) [2023] KEELRC 740 (KLR)", Case Analysis (2023). Cause No 339 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/740/eng@2023-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.