1.The suit before the trial court, from which this appeal arises, was commenced by way of Memorandum of Claim dated 26th March, 2015 by the Respondent herein against the Appellant.
2.In summary, the Respondent was an employee of the Appellant from December, 2011 to 15th May, 2014, as a spray painter earning Kshs 16,000/- per month. According to the Respondent, though he was entitled to an additional sum on salary as house allowance, the same was never paid. He was dismissed on the allegations that he had stolen a computer box. According to the Respondent, this allegation was based on results of the rituals performed by a witchdoctor whose services were retained by the Appellant. As a result, the Respondent was arrested and detained at Mariakani Police Station overnight. The following day, he was released but was dismissed by the Appellant employer. Thereafter, the Respondent sought legal assistance from Kituo Cha Sheria and upon the intervention of Kituo Cha Sheria, the Appellant made an offer to him for his return to work. However, the Respondent declined the offer and instead opted to be paid his terminal dues.
3.According to the Respondent, the termination of his contract was unfair and unlawful. The Respondent therefore claimed for notice pay in the sum of Kshs 18,400.00; arrears of house allowance for the entire period worked at Kshs 64,800.00; annual leave pay for the entire period at Kshs 31,273.00; the equivalent of 12 months’ salary in compensation for the unfair termination at Kshs 192,000.00; punitive damages; certificate of service; and costs. The basis for his claim for punitive damages was that his name was soiled yet it was the electrician who was responsible for the removal of the computer box, before spray painting.
4.The Appellant’s case, on the other hand, was that the Respondent was employed on casual terms, as a spray painter, from December 2011 to 15th May, 2014 at a salary of Kshs 16,000.00 inclusive of house allowance and that on 15th May 2014, he deserted employment. It was its case that the said computer box got lost while under the care of the Respondent and the matter was reported to the police who arrested the Respondent and held him in custody overnight. Upon the release of the Respondent, the Appellant offered to re-employ him but the Respondent absconded from duty without tendering his resignation. As a result, the Appellant summarily dismissed him. This evidence was based on the witness statements which was admitted by consent without calling the makers thereof for cross-examination. That consent was made on 8th December, 2016, in which it was agreed, inter alia, that the Respondent’s case which had been closed when the Respondent failed to appear at the hearing on 23rd November, 2016 when the defence case was scheduled for hearing, would be reopened; that the Respondent’s witnesses’ statements on record would be admitted as Respondent’s evidence; that the Respondent’s documents would similarly be admitted as exhibits; and that the Respondent’s case would be closed and a date taken for mention to confirm the filing of submissions.
5.In his judgement, the Learned Trial Judge found that the Respondent was employed by the Appellant as a spray painter between December, 2011 and 15th May, 2014 earning Kshs 16,000.00 monthly. The Learned Trial Judge believed the Respondent’s evidence which was on oath and subjected to cross-examination as opposed to that of the Appellant which was never subjected to cross examination.
6.According to the Learned Judge, the resort by the Appellant to the use of witchcraft violated the Respondent’s rights to fair labour practices under Article 41 of the Constitution as well as Sections 41, 43 and 45 of the Employment Act and was hence repugnant to justice and morality hence was inconsistent with the Constitution and the law. According to the Learned Judge, an employee who is offered his job back, as the Respondent was, has a discretion to take it or leave it. It was however noted that though Appellant acted unfairly, it made amends and mitigated its wrongful act.
7.Based on the foregoing, the Learned Judge found that as the remedy for compensation is purposed on redressing economic injury, any economic injury suffered by the Respondent, after he rejected to go back to work, is, by and large, self-inflicted hence his compensation, if any, should be minimal. He therefore assessed the Respondent’s compensation for unfair termination to equivalent of 4 months’ salary at Kshs 64,000.00. In respect of punitive damages, the Court found, based on the mode of investigation adopted by the Appellant, the claim was merited and he awarded the Respondent Kshs 450,000.00 in respect thereof. He however declined to grant the prayer for notice since it was the Respondent who declined re-employment. He declined the prayer for payment in lieu of leave since there was evidence that the Respondent went on leave. Since the Respondent’s payslip showed that Kshs 1,500.00 was for house allowance, the claim for house allowance was similarly declined. He however directed that a Certificate of Service be issued to the Respondent and made no order as to costs.
8.Before us the Appellant has based its appeal on the following grounds:
9.It was therefore sought that the appeal be allowed and that the award of punitive damages of Kshs 450,000.00 be set aside.
10.On behalf of the Appellant it was submitted that the Court disregarded the Appellant’s evidence thus breaching the Appellant’s fundamental right to a fair hearing when it reached the conclusion that the Appellant engaged in witchcraft. It was further the Appellant’s case that the award of exemplary damages was irregular in that the case did not meet the threshold for awarding exemplary damages and the award was excessive in the circumstances.
11.According to the Appellant, the Rules governing procedure in the Employment and Labour Relations Court are the Employment and Labour Relations Court (Procedure) Rules, 2016 and not the Civil Procedure Rules. In this regard reference was made to Rules 25 and 26 of the Employment and Labour Relations Court (Procedure) Rules, 2016 and it was submitted that the attendance of a witness may or may not be required by the court as an affidavit or a witness statement is sufficient evidence in Employment Proceedings, unless the court requires the deponent to appear before it to be cross examined.
12.It was therefore submitted that both parties, having in mind the Rules as discussed here above consented to have the Witness Statements and Documents on record for the Appellant, admitted as the Appellant's evidence. By the Respondent expressly consenting to closing the Appellant's case without exercising its right to cross examine the Appellant’s witnesses, it was submitted that the Respondent effectively abdicated its chance to cross-examine the witnesses presented by the Appellant.It was therefore submitted that the Learned Judge erred in fact and law when he completely disregarded the Appellant’s evidence, specifically the overwhelming evidence as contained in the Witness Statements filed by the Appellant against the allegations of witchcraft as raised by the Respondent, on grounds that the evidence was untested.
13.On whether the allegations of witchcraft were proved, it was submitted that the evidence of witchcraft was specifically contradicted by the Appellant in the witness statements filed in court. It was submitted that the legal nature of witchcraft in our jurisdiction is that the same is criminally sanctioned under the Witchcraft Act, as such there are certain elementary requirements that a court of law should expect to be provided in evidence to prove such an allegation if raised even in a civil dispute. In this matter not only was there no such evidence produced, the evidence produced by the Respondent was directly contested by the Respondent.
14.It was submitted that the court ignored the overwhelming evidence by the Appellant in its witness statements contrary to the provisions of Rule 25(3) of the Employment and Labour Relations Court (Procedure) Rules. In the Appellant’s view, the accounts as rendered by the Appellant were more probable. Therefore, it was submitted, the court completely failed to examine the evidence presented by the Appellant thereby reaching an erroneous decision.
15.On whether the Exemplary damages of Kshs 450,000/= awarded against the Appellant were excessive, reliance was placed Rookes v Barnard and others (1964) AC 1129 which case is heavily relied on in Obongo v Municipal Council of Kisumu [1971/ EA 91. It was submitted that this case does not fall within the yardstick set out in these cases and as such the award of punitive damages should not have been awarded. The Appellant in this case is not a Governmental Agency and neither can it be said that there was some financial benefit that the Respondent enjoyed in this case. Further the cause of action herein stems from an action in contract and not in tort.
16.It was further submitted that even if it were argued that the Learned Judge rightly awarded exemplary damages in this matter, the award given was extremely high and oppressive on the Appellant. According to the Appellant, it is trite law that where an action complained of is criminal, exemplary damages should not exceed the punishment which would have likely been given in criminal proceedings as was held in Obongo v Municipal Council of Kisumu [1971/ EA 91 while quoting Rookes v Barnard and others  AC 1129. The reason for this, it was submitted, is because exemplary damages are meant to punish a defendant and never for compensating the Plaintiff. In this regard, the Appellant relied on Kampala City Council v Nakaye [19721 E A 446 at page 448. Simply put, it was submitted, since exemplary damages are a mode of punishing an offender, if an offence is set out in law the punishment imposed must also be what the law has prescribed for such an offence. In this regard reference was made to Section 7 of the Witchcraft Act which provides as follows; -
17.It was therefore submitted that even if the court were to insist despite the lack of evidence that the allegations by the Respondent were true, it ought to have stuck to the law providing for sanctions of such acts which in this case Section 7 of the Witchcraft provides for the maximum fine payable. According to the Appellant, it is trite law that a man can only be punished to the extent provided in law and therefore the learned judge in taking up such role of imposing punishment on the Appellant ought not to have exceeded the limit provided simply because the matter has taken up the nature of a civil dispute.Therefore, in the Appellant’s view, the award of Kshs. 450,000/- for exemplary damages was not only irregular in this matter but also extremely exorbitant and contravened the principle of legality.
18.We were urged to allow the appeal with costs.
19.On behalf of the Respondent, it was submitted, while not disputing the provisions of the said Employment and Labour Relations Court (Procedure) Rules, 2016, that a distinction has to be drawn between a witness statement and an affidavit. It was submitted that there is not as yet any authority for a witness statement on its own being evidence. However, the Respondent contended that the said provisions of the Employment and Labour Relations Court (Procedure) Rules, 2016 do not in any way bar the parties to the cause from calling to Court witnesses to tender evidence and produce documents in support of the party's case. According to the Respondent, the Appellant having filed witness statements in support of its case at the trial, it had an obligation to avail the said witnesses to tender evidence in support of its claim and also to further disprove the evidence that was tendered by the Respondent in support of his claim.
20.It was submitted that the Trial Court was presented with conflicting facts by each party to the suit from which there were issues which the Court was invited to make a determination on. It was therefore contended that the failure by the Appellant herein to produce the witnesses in Court to tender their evidence and be cross-examined on the disputed facts meant that the witness statements as filed remained "mere statements" with no evidential value. In this regard, reliance was placed on Petition No. 6 of 2013 - Josai Taraiya kipelia Ole Kores v Dr. David Ole Nkedianye and 3 others and Cause No. 68 of 2020 Kenya Union of Sugar Plantation and Allied Workers v Kibos Sugar and Allied Industries Ltd. 2022 eKLR.
21.Accordingly, as the witness statements were untested the Trial Court was right in finding that they were of no probative value and this Court was urged to find as such.
22.On whether the allegations of witchcraft were proved, the Respondent submitted that by failing to avail their witnesses adverse inference ought to have been drawn against the said witnesses. Reliance was placed on Civil Appeal No. 184 of 2018 - Stanley Mombo Amuti vs Kenya Anti- Corruption Commission, and Elgin Finedays Ltd vs Webb 1974 AD 744.
23.It was submitted that the Trial Court sufficiently examined the evidence tendered before it and arrived at a well-reasoned decision and we were urged to find the same.
24.On exemplary damages, it was submitted that the actions of the Appellant herein, were at all times calculated to procure it some profit or benefit which benefit need not be financial. The Appellant's actions, it was contended, not only succeeded in instilling fear on theemployees, but also resulted in the exit from employment of some of the employees and by extension affording a benefit on the Appellant herein due to the said exit. It was also submitted that the said conduct was wilful and calculated and the same is properly a matter where punitive damages may be awarded.
25.It was therefore submitted that Trial Court was well within its right in exercising its discretion and awarding punitive damages in this case, for the use by the Appellant herein of unconventional means to solve an employment dispute, for the outright breach of the Employment Act and for the violation of the Constitution. It was the Respondent’s submission that the amount awarded is not excessive and the same is commensurate to the wrong committed.
26.According to the Respondent, the award made by this Court was one made in exercise of its discretion and the Appellant herein has not adduced evidence that is sufficient to warrant this Court disturbing the same. In support of this submission, the Respondent relied on Kenfreight (E.A) Limited v Benson K. Nguti  eKLR.
27.According to the Respondent, punitive damages are not general damages but are payments to ensure compliance and in our case to ensure compliance with Employment Laws and Legislation. Punitive damages, it was submitted, are discretionary as regards the amount to be awarded and is not limited by Statutory law as suggested. It was contended punitive damages are granted in addition to actual damages in certain circumstances as where a respondent's behaviour is found to be especially harmful and are aimed at reforming or deterring a respondent and others from engaging in conduct similar to that which formed the basis of the suit. Reference was therefore made to D.K Njagi Marete vs Teacher Service Commission  eKLR and we were therefore urged to uphold the award.
Analysis and Determination
28.We have considered the issues raised in this appeal. This being the first appeal, this Court’s mandate was re-affirmed in Kenya Ports Authority v Kuston (Kenya) Limited  2 EA 212 where this Court held that:-
29.We have set out the respective cases for the parties at the beginning of this judgement. Before us it is contended that the Learned Trial Judge erred in failing to consider the evidence presented by the Appellant on the basis that the same was not tested by cross examination. According to the Appellant the course adopted by the parties was in line with 25(3) of the Employment and Labour Relations Court (Procedure) Rules, 2016. That rule provides that: -
30.In this case, the parties recorded a consent in which the witness statements and the documents filed by the Appellants were to be admitted and submissions made thereon. This was the parties own mode of adducing evidence. By so doing, the parties took a calculated risk and seemed to have left the decision as to what weight to attach to such statements purely in the hands of the Court. While the Employment and Labour Relations Court (Procedure) Rules, 2016 provide for a procedure where the Court may, instead of taking oral evidence, decide the matter based on affidavits or written statements, that decision is one that ought to be left to the Trial Court and being an exercise of judicial discretion, ought not to be thrust upon the Court, purportedly by consent of the parties.
31.Whereas parties are at liberty in civil proceedings to consent to the manner of proceeding and even to compromise a suit, any compromise whose effect amount to the court abdicating its adjudicatory duty or one that amounts to abuse of the court’s process or exposes the adjudicatory process to ridicule, ought not to be accepted by the Court hook, line and sinker, simply because it is consensual. In our view whereas in adversarial systems like ours, parties are at liberty to conduct their matters in a manner they deem fit, the process of doing so ought to lawful and procedural. A consent that leaves the court in a dilemma on how to make a final decision ought not to be countenanced. To quote Oder, JSC in the case of Gokaldas Tanna v Rosemary Muyinza & DAPCB SCCA No. 12 of 1992 (SCU):
32.The current system is that the Court must always be on the driving seat of litigation and this was appreciated by this Court in Stephen Boro Gitiha v Family Finance Building Society & 3 Others Civil Application No. Nai. 263 of 2009, where the Court expressed itself as follows:
33.For avoidance of doubt the overriding objective is reproduced in Section 3 of the Employment and Labour Relations Act, though called “Principal Objective.” Where one of the parties has adduced evidence on oath tested by cross-examination, and the other party opts to rely on bare statements without calling the makers thereof and giving the other party an opportunity to similarly subject them to cross-examination, it may well be unfair to treat both cases on the same plane. The purpose of cross-examination, according to Maganlal v King Emperor AIR 1946 Nagpur 126, is to test the veracity of the witness. Accordingly, where the Court is placed in a situation where it is unable to test the veracity of the statements filed due to a procedure adopted by a party, this Court cannot fault the Trial Court if it decides to believe the evidence whose veracity was tested before the Trial Court by a witness whose demeanour the Court was able to assess as opposed to cold-print statements. Parties and their legal advisers ought to take the advice of this Court in James Njoro Kibutiri v Eliud Njau Kibutiri 1 KAR 60  KLR 62; [1976-1985] EA 220 seriously in which the ingenious lawyers were advised that short cuts are fine, as long as you are absolutely sure they won’t land you in a ditch. In Lehmann’s (East Africa) Ltd v R Lehmann & Co. Ltd  EA 167 it was held that:
34.In these circumstances, we agree with the Learned Trial Judge in deciding to attach little or no weight to the witness statements filed by the Appellant.
35.On the award of punitive damages, in Bank of Baroda (Kenya) Limited vs. Timwood Products Ltd Civil Appeal No. 132 of 2001, this Court citing Obongo & Another vs. Municipal Council of Kisumu  EA 91 and Rookes v Banard & Others  AC 1129 held that in Kenya punitive or exemplary damages are awardable only under two circumstances, namely (i) where there is oppressive, arbitrary or unconstitutional action by the servants of the government; and (ii) where the defendant’s action was calculated to procure him some benefit, not necessarily financial, at the expense of the plaintiff. The third scenario is, of course, where such damages are authorised by statute.
36.This Court while declining to award exemplary damages in D K Njagi Marete v Teachers Service Commission  eKLR expressed itself as hereunder:
37.The Respondent has defended the said award on the ground that by its actions, the Appellant not only succeeded in instilling fear on the employees, but also resulted in the exit from employment of some of the Employees and by extension affording a benefit to the Appellant herein due to the said exit. It is clear that the benefit contemplated in award of punitive damages must not necessarily be financial. In this case, we must ask ourselves what the Appellant intended to achieve by resorting to the unorthodox method of investigation by engaging the services of a witchdoctor. Such unconventional and unlawful action undertaken by a sophisticated entity aptly described by the Learned Judge as “not a gullible simpleton, a village outfit, but…a major enterprise, resident in the resort city of Mombasa” must have been intended to achieve more than just vindicate a course of justice. In those circumstances we agree that the Appellant intended to derive some benefit from its action by resorting to “wizardry” as the Learned Judge termed its action.
38.Accordingly, we find no reason to interfere with the finding that the Respondent was entitled to punitive damages.
39.As regards the assessment of the said award, this Court in Bell & Another v I. L. Matterello Limited (Civil Appeal 72 of 2019)  KECA 168 (KLR) (18 February 2022) (Judgment) reiterated the circumstances under which it would interfere with an award of damages and expressed itself as hereunder:
40.In that case, the Court reduced the award from Kshs 2,000.000.00 to Kshs 500,000.00. In this case there is no doubt that the respondent was subjected to the indignity of undergoing rituals in the hands of a witchdoctor. The Appellant’s action was not only criminal but also demeaning and contrary to Article 28 of the Constitution. In the circumstances, we find no reason to interfere with the award since as was held in Catholic Diocese of Kisumu v Sophia Achieng Tete Civil Appeal No. 284 of 2001  2 KLR 55 an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance.
41.In the premises we find no merit in this appeal which we hereby dismiss with costs to the Respondent.
42.It is so ordered.