Kibe v Attorney General

Court of Appeal, at Nairobi April 4, 2003

Shah, O’Kubasu & Keiwua JJ A

Civil Appeal No 164 of 2000

(Appeal from the judgment/decree of the High Court of Kenya

at Nairobi (Githinji J) dated 4th day of April 2001 in

HCCC No 355 of 1999)

Negligence - appellant employed in cash office - appellant failing to alert cashier or assistant to lock the door - money stolen from cash office - appellant charged but acquitted - whether the appellant could subsequently be dismissed on the ground of negligence.

Employment Law - appellant dismissed for negligence - dismissal done before verdict in criminal trial - whether dismissal should have awaited verdict in criminal trial.

Employment Law - dismissal - appellant charged and acquitted – appellant filing suit for wrongful dismissal - dismissal not based on criminal case - evidence in criminal case exonerating the appellant from criminal liability - whether trial Judge ought to have considered such evidence.

Evidence - trial judge making reference to regulations - regulations basis of appellant’s employment - neither party having cited regulations - whether Judge wrong in referring to the regulations.

The appellant was employed in the cash office of the Ministry of Agriculture. Following a theft incident in the office, the appellant was charged but subsequently acquitted. He was nevertheless dismissed from his employment on the ground of negligence. This dismissal had been done before his acquittal. He therefore filed suit seeking damages for wrongful dismissal alleging that the criminal case had exonerated him from liability. The claim was subsequently dismissed and he appealed to the Court of Appeal.

Held:

1. The appellant, in failing to alert the cashier or assistant to lock the door had neglected the duty he had been employed to perform. Notwithstanding the acquittal in the criminal trial, an award of punishment including dismissal as had happened may still be imposed to discipline him.

2. The decision to dismiss the appellant for negligence did not have to await the verdict in the criminal trial and accordingly nothing attaches to the fact that the letter of dismissal preceded the judgment in that case.

3. Since the dismissal was not based on the criminal case there was no reason why should have dealt with the evidence in the criminal case as such save where the appellant had himself referred to the evidence in his letter of appeal to the Public Service Commission. The evidence in the criminal case only exonerated the appellant from criminal as opposed to civil liability, which his dismissal was all about.

4. There was absolutely nothing wrong in the High Court Judge making reference to the regulations, which were the basis of the appellant’s employment.

Appeal dismissed with costs.

Cases

No cases referred to.

Statutes

No statutes referred.

Benjamin Kipchumba Bett v Electoral Commission of Kenya & 2 others

High Court, at Eldoret April 4, 2003

Etyang J

Election Petition No 1 of 2003

Election petition - procedure - requirement that petitioner must personally sign the petition - basis for that requirement - whether the petitioner must sign in a particular manner - discrepancy in signatures - decision for the election court - weight given to technicalities - section 23(1)(d) of the National Assembly and Presidential Elections Act (cap 7).

The petitioner challenged the election of the third respondent as a Member of Parliament based on the ground that several laws relating to elections had been flouted.

The third respondent raised a preliminary objection contending that he petitioner had not signed the affidavit in support of the application and the notice of appointment of advocate, which rendered the petition incurably defective. The third respondent argued that the signatures appearing in the petition, notice of appointment of advocates and in the affidavit were not by the same hand and that none of those signatures was the petitioner’s. This, it was argued, was against the requirement that the petitioner must personally sign the petition.

The petitioner conceded that the signatures were indeed different but maintained that they were by his hand. He submitted that one may have several different signatures and can be perfectly entitled to sign differently on any occasion.

Held:

1. The mandatory requirement that a petitioner in an election petition shall personally sign a petition is based on the ground that a petitioner must take personal responsibility for all the averments contained in the petition.

2. There is no legal requirement that a petitioner ought to sign a petition and a notice of appointment of advocates in a particular manner.

3. An election court is mandated under section 23(1)(d) of the National Assembly and Presidential Elections Act (cap 7) to decide all matters that come before it without undue regard to technicalities.

Preliminary objection overruled.

Cases

Moi, Daniel Toroitich Arap vs Kenneth Stanley Njindo Matiba & 2 others

(Nairobi) Civil Appeal No 176 of 1993

Statutes

1. National Assembly and Presidential Election Act (cap 7) sections 20(1)(a); 23(1)(d)

2. National Assembly and Presidential (Election Petition) Rules (cap 7 Sub Leg) rules 4(3), 9

Advocates

M/s Khamati, Akhaabi & Co Advocates for the Petitioner

Mr G K Mukele and Kihara Muttu for the 1st and 2nd Respondents

A G N Kamau for the 3rd respondent