Habil E. Imenje V Kenya National Co Ltd  EKLR
|Civil Case 2745 of 1984||21 Oct 1986|
Fred Kwasi Apaloo
High Court at Nairobi (Milimani Law Courts)
Habil E. Imenje v Kenya National Co Ltd
Habil E. Imenje v Kenya National Co Ltd  eKLR
Imenje v Kenya National Co Ltd
High Court, at Nairobi October 21, 1986
Civil Case No 2745 of 1984
Employment - contract of – termination of employment – contract of employment suspended after employee was charged with offence – contract later terminated - employee acquitted of offence – contract entitling employer to dismiss employee on notice or with salary in lieu of notice – employee paid salary for period of suspension – whether termination of employment proper.
The plaintiff was employed by the defendant as a clerk in its motor department. He remained in employment until October 22, 1982 when he was suspended from duty. The plaintiff’s suspension was not directly related to his office with the defendant but that he was picked by the police apparently on suspicion of having committed a criminal offence and in respect of which he was eventually charged. The plaintiff underwent trial on a charge of conspiracy to commit a felony and was eventually acquitted. When the matter was still pending in court the defendant company suspended the defendant pending the outcome of the criminal trial.
However, nearly fifteen months after his suspension and some weeks before his acquittal, the company terminated the plaintiff’s employment which it purported to do with retroactive effect from the time of his suspension. The company later withdrew the decision to retroactively terminate the plaintiff’s contract and paid him the salary for the entire period of his suspension. The plaintiff however demanded general damages for wrongful dismissal and malicious prosecution in respect of which he filed suits.
1. For the period that he was suspended without pay, the plaintiff was technically in employment of the company until either party brought the contract of employment to an end.
2. Termination of a contract of employment can be said to be wrongful if it is made in breach of the terms of that contract.
3. In this case the company was entitled to terminate the contract without assigning a reason for doing so by either giving three months’ notice or by paying three months salary to the plaintiff, which it did.
4. There was no law that was infringed or any principle of natural justice breached by the defendant in its exercise of the contractual right to terminate the plaintiff’s contract
5. Even if the court found the contract of employment had been breached by the defendant company, the quantum of damages the plaintiff would have recovered would be the total income he would have received during the period of notice i.e. three month’s salary.
6. The plaintiff’s right, if any, against the company existed’ex contractu’and not ex delicto. To suggest that the company incurred an obligation to provide compensation for the plaintiff on the basis of his “lost years” would be to confuse damages awardable in tort for that which is properly awarded in contract.
Plaint dismissed, judgment for the defendant.
1. Lukenya Ranching and Farming Cooperative Society Ltd v Kavoloto  EA 414
2. Ombanya v Gailey & Roberts Ltd  EA 522
3. Addis v Gramophone Co Ltd  AC 488
No statutes referred.