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|Case Number:||Civil Suit 424 of 2006|
|Parties:||JOHN DANSON KIBINDA v UNIVERSITY OF NAIROBI|
|Date Delivered:||28 Oct 2011|
|Court:||High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)|
|Judge(s):||Kalpana Hasmukhrai Rawal|
|Citation:||JOHN DANSON KIBINDA v UNIVERSITY OF NAIROBI  eKLR|
|Disclaimer:||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|
IN THE HIGH COURT OF KENYA
MILIMANI LAW COURTS
CIVIL SUIT NO 424 OF 2006
The Plaintiff herein was employed by the Defendant in the Department of Chemistry since 1973. The Plaintiff’s claim is specified in paragraph 4 of the Plaint dated 26th April, 2006; namely
As per paragraph 5 of the plaint, the Plaintiff has claimed for ‘salaries arrears and allowances and any other benefits which accrued from 19th September, 2004’.
With the above averments the Plaintiff has asked for the following prayers:
The Defendant’s Defence having admitted the contents of paragraph 4 of the Plaintiff, an interlocutory judgment was entered against it and the suit came for formal proof before this court.
The Plaintiff testified that as a result of unlawful termination of his employment, he suffered in terms of loss of salaries, housing allowances, medical support, leave, opportunity of progression of his children (sic), had undergone stress and frustrations, shortening of his life, suffering from blood sugar and high blood pressure. He further testified that he was unable to pay his debts due to the abrupt stoppage of his salary.
In further support of his claim, he testified that at the time of termination of his service, he was earning monthly salary of Ksh.106,000/= which included house allowance, medical, dental and optical cover for the whole family. He then rectified and stated that he was paid ksh.105,123/= per month inclusive of house allowance. He further claimed that he was supposed to be working till he attained the age of 70 years and calculated his dues against the Defendant in the sum of Ksh.32,282,150/= as loss of earnings, Kshs.1,000,000/= for suffering and inability to meet daily needs (sic) and pension as per the pension scheme of the Defendant. He admitted that he was paid Kshs.1,300,000/= but stated that he was supposed to be paid Ksh.4,000,000/=.
Both the counsel filed written submissions. Mr. Ngoge, the learned counsel for the Plaintiff relied on the evidence, the economic, social and culture rights granted to humanity under the Universal Declaration of Human Rights which aims at giving all people “freedom from fear and want”. Chapter IV of our Constitution was also relied upon, which directs the State to make provisions for such rights of the people of Kenya. According to him the law of employment developed by our courts including the Court of Appeal are overtaken by the aforesaid provisions. He emphasized that as the Defendant has admitted liability the compensatory damages as per those rights have become equitable rights and the court cannot but accept that a wrong follows the remedy. He urged that Ksh.1,000,000/= be accordingly granted.
It was emphasized that the claim of Ksh.32, 282,150/= has neither been pleaded nor proved. The claim of the Plaintiff was that he was unlawfully retired on 19th Sept, 2004 (when he attained the age of 60) instead of on 30th June, 2005. But in his evidence he is claiming the dues upto the age of 70. He cannot amend the Plaint either in evidence or in submissions it was contended.
I do note and find that this is the claim arising out of a private contract of employment. The Defendant has admitted the contents of the Plaint as averred in paragraph 4 thereof. The interlocutory judgment accordingly was entered. The parties thus are bound by their respective pleadings, unless amended. I shall accordingly proceed to determine this suit.
The Plaintiff has not substantiated his claim of extension of his service period till 70 years, as well as his other damages testified in his testimony. This court cannot consider the same or grant them even if, the emotional submissions on the human rights of the Plaintiff be taken into account. I may however place my view on record that the contractual obligations have to be considered within the ambit of the specific contract unless there are stipulated and proved facts before the court. Unfortunately I do not have them.
The Plaintiff has conceded the payment of Kshs.1,300,000/= and without any evidence from either side, I cannot surmise the details thereof. Let it be recorded as paid sum for dues. I must admit that the matter became confused due to the admission and Interlocutory Judgment entered which was not upset.