Director General Kenya School of Government Baringo Campus v Jebet (Chebet) (Appeal E007 of 2021) [2024] KEELRC 143 (KLR)
The bottom line
#A Kenyan court upheld an unfair termination award against an employer but struck out Kshs.300,000 in exemplary damages because disability discrimination was never pleaded or proved.
What this practically means
#Executive summary
#Key legal issues
#Whether the cross-appeal was properly before the court
There was no properly filed cross-appeal on record; the original cross-appeal was withdrawn and the later notice was filed out of time and without leave.
The respondent lodged a cross-appeal in August 2021 but withdrew it by notice dated 1st August, 2022. No application for reinstatement or for leave to file out of time was made. A second notice dated 12th September, 2022 was therefore procedurally defective. The court declined to make any findings on it and disregarded the respondent's submissions on it.
Whether the termination of the respondent was unfair and unlawful
The termination was unfair and unlawful both substantively and procedurally; the trial court's finding on this was upheld.
The respondent, who had just resumed from maternity leave, was terminated for poor performance without a hearing, without a disciplinary process, and without involvement in the performance appraisal. The court held the employment relationship was contractual and terminable only per Sections 35, 40, 41, 43 and 45 of the Employment Act, Section 4 of the Fair Administrative Action Act and Article 47 of the Constitution. Admitting the appraisal report would not have altered the outcome because the appraisal itself was conducted irregularly.
Whether the award of Kshs.300,000/= exemplary damages was justified
The award was set aside because it was based solely on the respondent's certified disability without proof of discrimination.
The memorandum of claim did not plead discrimination based on disability, nor particulars of violation, nor was any evidence led of prejudice, bias or differential treatment. Citing Anarita Karimi Njeru and Mumo Matemu, the court held violations must be specifically pleaded and proved. Had the respondent not been disabled, exemplary damages would not have been awarded; disability alone was an impermissible basis for the award.
Whether the other awards (12 months' compensation, notice pay, leave pay) should be disturbed
No interference warranted; the awards were fair and supported by the evidence under Section 49(4) of the Employment Act.
The appellant handled the disciplinary action ruthlessly - terminating the respondent on return from maternity leave following an appraisal she knew nothing about, which was inhumane, degrading and an unfair labour practice under Article 41. The evidence adduced justified the notice pay and leave pay awards.
Probative value of the performance appraisal report produced by a non-maker
The report was not a public document under Section 125 of the Evidence Act, but its admission or rejection was immaterial since the appraisal was conducted without the respondent's participation.
The court declined to dwell on whether the trial court rightly rejected the report produced by the human resources officer rather than its maker. Even if admitted, the appraisal was irregular because the respondent was not involved or given a chance to respond, so the material facts and outcome would have remained unchanged.
Legal principles established
#- On a first appeal the court must re-examine and re-evaluate the evidence afresh, bearing in mind it neither heard nor recorded the trial evidence.
- A claim for damages for violation of rights on the basis of disability must be specifically pleaded with particulars and proved by evidence; disability alone does not entitle a claimant to exemplary damages.
- Unfair termination jurisprudence comprises both substantive and procedural fairness; an employer terminating for poor performance must show measures taken to help the employee improve and must involve the employee in the performance appraisal.
- A withdrawn cross-appeal cannot be relied upon in submissions without an application for reinstatement or leave to file out of time.
Court orders
#- 1.The appeal shall succeed partially.
- 2.The judgment of the lower trial court is upheld, except in regard to the award of exemplary damages in the sum of Kshs.300,000/= which is set aside.
- 3.Each party shall meet own costs in this appeal, but the order of the lower court awarding costs of the trial to the respondent (claimant) is upheld.
- On appeal from
- Nakuru Chief Magistrate's Court (CMCC (ELRC))
- Nakuru CMCC (ELRC) No. 109 of 2018
- Jurisdiction invoked
- First appeal from the subordinate court (statutory first appellate jurisdiction of the ELRC)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Director General Kenya School of Government Baringo Campus v Jebet (Chebet) (Appeal E007 of 2021) [2024] KEELRC 143 (KLR)", Case Analysis (2024). Nakuru ELRC Appeal (memorandum of appeal dated 2nd August, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/143/eng@2024-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.