|Civil Appeal 211 of 2005
|James Koskei Chirchir v Chairman Board Of Governors Eldoret Polytechnic
|25 Mar 2011
|Court of Appeal at Eldoret
|Samuel Elikana Ondari Bosire, Philip Nyamu Waki, John walter Onyango Otieno
|James Koskei Chirchir v Chairman Board Of Governors Eldoret Polytechnic  eKLR
|Appeal from the judgment of the High Court of Kenya at Eldoret (Gacheche J.) dated and delivered on 16th day of June 2005 in H.C.C.A. NO. 32 OF 2003
|Individual/Private Body/Association v Individual/Private Body/Association
|History Docket No:
|32 OF 2003
|Jeanne Wanjiku Gacheche
Employment law – contract of employment – claim against the respondent for wrongfully dismissal and payment of terminal dues – where the contract was governed by the collective bargaining agreement between unionizable employees – whether termination procedures were properly followed – whether the employee was entitled to the benefits in the circumstances.
Civil practice and procedure – costs and interest – where the magistrates court had awarded the appellant costs and interest – High Court’s order on first appeal that each party bears its own cost – whether it was proper for the High Court to deny the appellant his costs before the trial court – Education Act (Cap 211), Employment Act (Cap 226), Civil Procedure Act (Cap 21) section 27
|Court order that the appellant shall have his costs before the trial court
|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
CIVIL APPEAL NO. 211 OF 2005
H.C.C.A. NO. 32 OF 2003
After pleadings closed, the suit was set down for hearing and was eventually heard by Mr. Wamwayi, a Chief Magistrate. In his judgment the learned Chief Magistrate found as fact that the appellant’s employment was governed by a Collective Bargaining Agreement between unionizable employees of the respondent and the respondent, but because the appellant did not appear before the Board of Governors for a final decision on whether or not he would be summarily dismissed, the dismissal was premature. avHaving not been served with the appropriate notice before dismissal, the learned Magistrate held, he was entitled to two months salary in lieu of notice and unpaid leave. The learned trial magistrate did not however think the appellant was entitled to gratuity, loss of future earnings and alleged underpaid house allowance. He then gave judgment in terms and thus provoked an appeal to the superior court.
The appellant was employed by the respondent as a plumber. On 7th September 2001, a water heater, fans and tubes belonging to the respondent had been dumped in a dust bin within the compound of the Eldoret Polytechinic. Investigations revealed that it was the appellant who had dumped them there. The appellant in a memo dated 24th September 2001 admitted he did so but explained that he did so at the request of the electrician pursuant to a maintenance section memorandum in which the supplies department had authorized the disposal of the items. The matter was referred to the Disciplinary Committee comprising of the Principal, the Registrar, and the supplies officer. The Committee heard, among other people, the appellant and in the end, after deliberations, it came to the conclusion that the appellant had “illegally” disposed off the employer’s equipment without following the correct procedure. That committee recommended that action be taken against the appellant. That decision was however, subject to ratification by the Board of Governors of the Institution. The Minutes of that Committee, as material, read as follows:
This is a second appeal. Only issues of law fall for consideration. We have no doubt in our minds that both courts below came to the right conclusion that the termination of the appellant’s employment was wrongful. Both courts did not however think that the Collective Bargaining Agreement applied. That, as we stated earlier, is the central issue in this appeal.
Mr. Omwenga for the appellant, relying on the appellant’s letter of appointment, submitted that it did not matter whether or not the appellant was a member of the Union. His terms of employment had been spelled out as those contained in the collective agreement. Besides, he said, the appellant’s letter of dismissal was based on the collective Bargaining Agreement.
The appellant’s main claim was under the head “SERVICE GRATUITY”. Payment under this head is to those employees who retire. Clause 31 of the Collective Bargaining Agreement provides thus:
The appellant’s employment did not terminate with retirement. He was dismissed. The trial and first appellate courts found as fact that the appellant was guilty of misconduct. That being so he would not be entitled to claim service gratuity. The mere fact that the termination procedures were not properly followed would not per se entitle him to claim service gratuity as if he had been retired.
Likewise the appellant was not entitled to claim loss of future earnings as that claim presupposes that the appellant would have worked until retirement.
All in all, this appeal lacks merit.
As regards costs, the appellant was awarded costs and interest by the trial magistrate. The superior court on first appeal ordered that each party would bear its own costs both before that court and also those before the trial court. The appellant was aggrieved, in his advocate’s words, because under section 27 of the Civil Procedure Act costs follow the event. The appellant’s appeal largely failed. The respondent’s cross-appeal also failed. Notwithstanding the provisions of section 27, above, costs are generally a matter within the discretion of the court. The court did not, however, explain why it denied the appellant his costs before the trial court. In absence of any explanation in that regard we think that the learned Judge of the superior court erred in denying the appellant the costs of the suit before the trial court. We would therefore set aside the order on costs and in place thereof order that the appellant shall have his costs before the trial court, but make no order as to costs both before the superior court and this Court.
It is so ordered.
Dated and delivered at Eldoret this 25th day of March 2011.
JUDGE OF APPEAL
JUDGE OF APPEAL
J.W. ONYANGO OTIENO
JUDGE OF APPEAL