|Civil Appeal 277 of 2009
|Ronald Kimatu Ngati v Ukulima Sacco Society Ltd
|25 Mar 2011
|Court of Appeal at Nairobi
|Daniel Kennedy Sultani Aganyanya, Erastus Mwaniki Githinji, Joseph Gregory Nyamu
|Ronald Kimatu Ngati v Ukulima Sacco Society Ltd  eKLR
|Mrs. Mbabu, learned counsel for the respondent
|(Being an appeal from the judgment of the High Court of Kenya at Nairobi (Khamoni, J.) dated 17th July, 2008 in H.C.C.C. No. 453 of 2007)
|Individual v Corporation
|Mrs. Mbabu, learned counsel for the respondent
|History Docket No:
|H.C.C.C. 453 of 2007
|John Micheal Khamoni
Civil Practice and Procedure -appeal-first appeal-nature of appeal-duty of the Court of Appeal to analyze evidence on record to guide it in reaching its conclusion-Selle & Another v. Associated Motor Boat Co. Ltd.  123 at p 126
Contract- contract of employment-where employee sues employer allegedly for breach of contract of employment due to apparent premature termination of employment-measure of damages due to such employee.
|One party or some parties represented
|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. 277 OF 2009
RONALD KIMATU NGATI …………………………………APPELLANT
(Being an appeal from the judgment of the High Court of Kenya at Nairobi (Khamoni, J.) dated 17th July, 2008
JUDGMENT OF THE COURT
In a suit dated 28th May, 2007 and filed in the superior court the appellant/plaintiff who was an employee of the respondent/defendant claimed from the latter the principal amount of Kshs.7,430,406/= as general damages for breach of contract, costs of the suit and interest and any other relief the court may deem fit to grant. The basis of this claim was that the appellant who was employed by the respondent and who had worked his way up to the status of a permanent and pensionable employee was forced to retire prematurely, which made him to suffer loss and damages.
The appellant, dissatisfied with this decision has now appealed to this Court through a memorandum of appeal lodged herein on 27th November, 2009. It has 9 grounds of appeal as follows:-
2. The learned trial Judge erred and misdirected him (sic) by not finding out from the defence the contract terms and conditions with the defendant.
4. The learned trial Judge erred and misdirected himself in failing to find out from the letter from Principal Registrar of Persons dated 4th October, 2002, quoted at page 5 of the judgment related to plaintiff, year of birth and also the correct names of the plaintiff.
6. The learned trial Judge erred and misdirected himself in deciding the case on the basis of an extraneous issue of retirement in the contract law or agreement.
7. The learned trial Judge erred and misdirected himself by deciding the case on the basis of an erroneous assumption and not a careful analysis of the evidence adduced) that the circumstances obtaining 15% when the defendant cause of 3% were the same as in when the alleged increment calculated annual increment of salary based mean figure since employment in 1989.
9. The learned trial Judge erred and misdirected himself on why the defendant had withheld plaintiffs. Benefits without justification amounting to Kshs.110,722/=.
Mrs. Mbabu, learned counsel for the respondent on the other hand opposed the appeal and stated that the superior court gave reasons for dismissing the suit. She stated further that the appellant did not inform the respondent about the change of the date of his birth and that the issue of the second identification card was only raised long after the appellant had been issued with the letter of retirement. Mrs. Mbabu also stated further that in any case the appellant did not justify or prove the claim of over Kshs.7 million he made against the respondent and that he offered no evidence of breach of contract. In reply the appellant stated that the issue of the date he was born arose when his wife died and it was his parents who suggested the year 1953 as the year he was born.
“An appeal to this Court from the trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this Court in not bound necessarily to follow the trial Judges findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on demeanour of a witness is inconsistent with the evidence in the case generally (Abdul Hamid Saif v. Ali Mohamed Sholan  22 EACA 270).”
When the appellant was employed by the respondent by letter dated 21st March, 1989 the records he submitted to the said respondent indicated that he was born in 1947. On 18th March, 2002 he was issued with a retirement letter by the respondent on the ground that he had reached the mandatory retirement age. But by letter dated 25th July, 2002 the appellant wrote to the respondent and stated:-
I acknowledge your letter dated 18th March, 2002. After serious thought I wish to state that my birth date is 1953 not 1947 as stated in your letter.
1. Application No. 24222 from the Principal Registrar of Persons, whereupon the original ID was surrendered.
3. Court Affidavit.
Kindly reconsider your decision.
We do not find any reply to this letter on this record. But there is a letter on the same record dated 25th October, 2002 which indicates that the appellant had written to the National Chairman of the respondent on 21st August, 2002 requesting for extension of his employment but that request was turned down by its management and the appellant advised to proceed for his retirement as earlier communicated to him. This particular letter of 21st August, 2002 is not on record to show the reason given by the appellant for extension of his employment or revocation of retirement. But his appeal before us is based on the issue of age of retirement which was not provided for in the general terms of employment or in his letter of appointment.
“After serious thought, I wish to state that my birth date is 1953 and not 1947 as stated in your letter.”
“Sometimes in July last year I advised verbally, when you went round the offices validating staff ages. The same information was later included in the revised staff data, now in the computer.”
“On the whole therefore, I find that is a case where parts of some vital evidence have been kept away from the Court while some which ought not to be brought has been brought as the plaintiff fails to pass the most vital test of discharging the burden squarely upon him that indeed he formally and properly or satisfactorily in writing informed the defendant of the official and lawful change of his date of birth from 21st March, 1947 to 21st March, 1953. At the same time, the court has been given contradicting evidence from the Principal Registrar of Persons in Plaintiff’s exhibit 5 and defendant’s exhibit 3. Yet the parties did not care to bring the said Registrar in court to testify in person. It follows I am not satisfied the plaintiff has succeeded in proving this suit against the defendant even on the balance of probabilities.”
In the circumstances of the learned Judge’s decision he did not go into the merits of the damages claimed. Even if he did, he would not have gone far as they were all in the nature of special damages which should be specifically pleaded and strictly proved. Issues relating to employment are contractual in nature and the appellant had a duty, once he pleaded the claims arising therefrom to strictly prove them – see Ouma v. Nairobi City Council  KLR 297. In addition even if for the sake of argument the contract was wrongfully terminated there is a wealth of authorities by this Court that the measure of damages would be the salary in lieu of notice and not the millions claimed by the appellant.
Dated and delivered at Nairobi this 25th of March, 2011
E. M. GITHINJI
JUDGE OF APPEAL
D. K. S. AGANYANYA
JUDGE OF APPEAL
J. G. NYAMU
JUDGE OF APPEAL