Dominic Charles Muthuuri v National Industrial Credit Bank Ltd
High Court, at Nairobi March 18, 2003
Civil Case No 793 of 2001
Employment law - dismissal – dismissal of plaintiff without giving reason – dismissal in accordance with contract – assurances made prior to making of contract – whether relevant in interpreting contract – master and servant relationship – whether servant may be dismissed without a reason.
Employment law - dismissal - damages for unlawful dismissal - how such damages are quantified - whether court can award exemplary damages - whether harshness accompanying dimissal and inability to find alternative employment relevant factors in assessing damages.
Contract - terms of contract - implied terms - whether extrinsic terms admissible to vary contract - whether implied terms can be allowed where they are manifestly inconsistent with expess terms.
Equity - equitable remedies - specific performance - whether such remedy can issue to compel performance of a contract of service.
On or about 4th December, 1998, the plaintiff entered into a written contract of employment with the defendant bank. On or about 25th August 2000 the defendant bank unilaterally without assigning any reason purported to terminate the plaintiff’s employment before it’s due date. The plaintiff further alleged that he had been enticed to join the defendant bank and that he had received assurances from the Managing Director and the
Company Secretary that he needed not worry about the fact that the contract provided for a one month’s notice prior to termination. Prior to his dismissal, the plaintiff had not been cautioned, reprimanded or warned before his employment was terminated.
1. The history preceding the execution of a contract and any discussions or assurances in that regard are superseded by the subsequent written contract which becomes the exclusive memorial of the parties agreement.
2. No extrinsic evidence is admissible to contradict, vary, add to or subtract from the terms of the document.
3. In determining the lawfulness or otherwise of termination of employment whose terms and conditions have been reduced to contract the only test was whether the said termination was in accordance with the contract itself.
4. The plaintiff’s contract having been terminated strictly in accordance with clause 5(b) of the contract of service, the plaintiff was lawfully dismissed.
5. Any expectations of a party which have not been expressed in the contract of employment are only relevant if deemed to be implied terms.
6. Terms in a contract cannot be implied if they are manifestly inconsistent with the express ones. Although the plaintiff had not been warned or reprimanded before his employment was terminated, his contract of employment did not envisage such procedures as conditional precedent to the termination of contract.
7. There cannot be specific performance of a contract of service and a master can terminate the contract with his servant at any time and for any reason or for none.
8. In a pure case of master and servant the question does not at all depend on whether the master gave the servant a hearing. It depends on whether the facts emerging at trial prove breach of contract.
9. (Obiter) The measure of damages for unlawful dismissal is the amount which the employee would have earned during the period of notice if the employment was terminable by notice or from the period of dismissal up to the time the contract would have ended if the employment was on a fixed terms basis.
10. In an action for wrongful dismissal, the Court in assessing the damages, is debarred from awarding exemplary damages because of circumstances of harshness and oppression accompanying the dismissal and injuring the feelings of the servant and also from considering the fact that the dismissed will make it more difficult for him to obtain fresh employment.
Suit dismissed with costs.
1. CPC Industrial Products (K) Limited v Omweria Ngima Civil Appeal No 197 of 1992
2. Ridge v Baldwin  AC 40;  2 All ER 66;  2 WLR 935
3. Addis v Gramophone Co Ltd  AC 488
4. Ombanya v Gailey & Roberts Ltd  EA 522
5. Rift Valley Textiles Ltd v Edward Onyango Oganda Civil Appeal No 27 of 1992
Employment Act (cap 226) section 14