|Civil Appeal 376 of 1992
|Carton Manufacturers Ltd v Moses Bosire
|30 Nov 1995
|High Court at Nairobi (Milimani Law Courts)
|John Wycliffe Mwera
|Carton Manufacturers Ltd v Moses Bosire eKLR
|Corporation v Individual
Carton Manufacturers Ltd v Moses Bosire
High Court, at Nairobi November 30, 1995
Civil Appeal No 376 of 1992
Employment – loss of employment – where one is wrongfully dismissed – whether one entitled to salary in lieu of notice.
Damages – general damages – whether general damages can issue for loss and damage suffered due to wrongful dismissal.
The respondent sued the appellant for summarily terminating his services on 27.5.1990. The learned trial magistrate found for the respondent, and ordered that he gets 2 months salary in lieu of notice to terminate his services. He was also given 21 days salary in the month of April. The appellant was dissatisfied, hence this appeal.
The respondent had been suspected of theft from his employer. He was arrested in presence of a director of appellant. It’s alleged that when he came to duty after release on bond, he was told to keep away till the case was finalised, but was not taken back on finality of the case.
Counsel for appellant argued appeal on 3 grounds covering awards made to respondent, which was 2 months salary in lieu of notice, and Shs 30000 as general damages.
The respondent maintained that the judgment was proper and he even added on cross- appeal that general damages should be increased.
1. The respondent was wrongfully dismissed.
2. The lower court was wrong in finding that the notice to terminate respondent’s employment was two months.
3. The respondent was entitled to a month’s salary in lieu of notice.
4. No general damages issue in cases of this type for loss and damage suffered is to the extent of wages for period of notice.
Appeal allowed in part.
1. Gailey & Roberts Ltd v Ombanya  EA 522
2. Nyaga v Air Zaire  LWR 65
3. Waibi v Railways & Harbours  EA 235
Employment Act (cap 226) sections 14(5)(iii); 17(g)
|Appeal allowed in part.
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO 376 OF 1992
CARTON MANUFACTURERS LTD .............APPELLANT
This appeal arises from the judgment of M/s S Ondeyo Senior Principal Magistrate, as she was then, in CMCC 4526/92 at Sheria House Nairobi.
In that suit the respondent had sued the appellant for summarily terminating his services on May 27,1990. The appellant had denied that claim. Both sides had called witnesses. The learned trial magistrate found for the respondent ordering that he gets 2 months salary in lieu of notice to terminate his services. She also gave him 21 days salary in the month of April 1990. These are the days he had worked in that month when on 21.4.90 he was arrested by police from his place of work with the appellant, in the presence of one of the appellant’s directors. The respondent had been suspected of stealing the property of the employer. He was charged in a criminal court but he was acquitted. Also awarded was Shs 30,000/= general damages for wrongful dismissal.
Mr Wanjau argued the appeal on the three grounds covering those awards. Mr Nganga on his part maintained that the judgment was proper. He even added in a cross – appeal that the general damages should be increased.
This Court is of the view that the respondent was wrongfully dismissed. S 17(g) Employment Act (Cap 226) may allow an employer to dismiss the employee on suspicion or committed theft. That claim is laid in this appeal. But what of the collective agreement with the union to which the respondent belonged? At least the evidence has it that a letter of dismissal was sent to a union – not the respondent! That aside, the respondent was arrested in the presence of a director of the appellant company on 21.4.90. So from that date the appellant knew why the respondent was not on duty. Indeed evidence had it and it was not denied that when respondent came on duty after his release on bond one director at the appellants premises told him to keep away until probably the case was finished. When he was acquitted, he was not taken back. So all along the appellants were aware as to why the respondent did not report on duty with effect from 21.4.90 until the court case ended. Respondent had no control over this. So dismissing him for failing to come to duty was wrong. Ground 1 is dismissed.
But the lower court was wrong in finding that the notice to terminate the respondent’s employment was two months. There is no evidence or law to back this up.
However it is usually a practice in industrial relations that where no specified notice time exits, it should be presumed that the notice takes as long as to earn a salary – usually one month or a week. Here the respondent was earning salary monthly. The appellants ought to have given a month’s notice (probably the collective agreement gave a longer period but it was not pleaded or exhibited ) and that is what the respondent is entitled to in salary terms. See s 14 (5) (iii) of Employment Act too.
By this the finding and the award of 2 month’s salary in lieu of notice is varied to read one month’s salary in lieu of notice. The respondent gets what his salary per month was – Shs 1560/= since he was dismissed on 27.5.90 while there was an agreement with effect from 1.5.90 bringing the respondent’s salary to Shs 1560/= pm. Ground 2 and 7 partially succeed.
Ground 6 on award of general damages. Case law cited before this Court is more than clear that no general damages issue in cases of this type for the loss and damage suffered is to the extent of wages for the period of notice. (See Ombanya vs G & R  EA 522, Nyaga vs Air Zaire  LWR 65, Waibi vs Railways & Harbours  EA 235). The respondent was also entitled to the 21 days he had worked in April, 1990.
Accordingly the appeal succeeds on this ground and the cross-appeal is dismissed.
In the end the appeal succeeds to the extent stated with costs set at 2/3 against the respondent. The respondent’s cross appeal is dismissed with costs.
Dated and delivered at Nairobi this 30th day of November, 1995