Weekly Newsletter 040/2019



Kenya Law

Weekly Newsletter


Court awards Kshs 84,214,500/- in damages for land degradation caused by unlawful trespass
Rhoda S Kiilu v Jiangxi Water and Hydropower Construction Kenya Limited [2019] eKLR
Environment and Land Case 34 of 2018
Environment and Land Court at Meru
L N Mbugua, J
September 25, 2019
Reported by Mathenge Mukundi
Download the Decision

Tort Law-trespass-trespass to land-elements for the tort of trespass to land-where the plaintiff claimed that defendant trespassed onto the suit properties by excavating soil, murram, and rocks and deposited waste and other useless materials without authority of the plaintiff-what were the available remedies for breach of the tort of trespass to land-whether the order of permanent injunction restraining the defendant from dealing with the suit property ought to be given-whether an order compelling the defendant to carry out environmental restoration and rehabilitation of the suit properties ought to be given-what were the elements of trespass to land-Trespass Act, (Cap 294), section 3(1).

Brief Facts
The suit was instituted by the plaintiff against the defendant, a Chinese company incorporated in China but plied its trade in Kenya. The defendant had been contracted by the Kenyan government to construct a road in Maua, Meru County. The plaintiff had pleaded that at all material times, she was the owner of the suit properties.
The plaintiff claimed that the defendant unlawfully trespassed unto the suit properties without justifiable cause where it dumped and deposited waste and other useless materials into the property. The defendant cleared trees and bushes, created roads, quarries, deep gullies and proceeded to carry out acts of excavation of soil, murram and rocks and carried them for construction.


Issues
  1. Whether the actions of the defendant of excavating soil, murram and rocks and dumping waste and other useless materials into the suit properties amounted to the tort of trespass to land.
  2. What were the remedies available for the tort of trespass to land?
  3. Whether the order of permanent injunction restraining the defendant from dealing with the suit property ought to be given.
  4. Whether an order compelling the defendant to carry out environmental restoration and rehabilitation of the suit properties ought to be given.
  5. What was the measure of general damages for the tort of trespass to land?

Held
  1. Trespass was an intrusion by a person into the land of another who was in possession and ownership. Section 3 (1) of the Trespass Act, provided that any person who without reasonable excuse entered, was or remained upon or erected any structure on, or cultivated or tilled or grazed stock or permitted stock to be on, private land without the consent of the occupier thereof would be guilty of an offence.
  2. The land adjudication and settlement officer confirmed that the suit properties were owned by the plaintiff. The plaintiff never authorized the defendant to enter her land and carry out works of construction or dumping. The court was therefore inclined to find that defendant had trespassed on the suit parcels belonging to the plaintiff.
  3. For special damages, the plaintiff had claimed Kshs. 74,214, 500/- which included value of murram scooped from the suit land. The initial assessment was based on the 1st valuation report. However, the excavation continued necessitating a further valuation report. The fee charged by the valuer was Kshs. 97,500/- whereas the costs of hiring of a taxi from Nairobi to Maua and back on different occasions amounted to Kshs. 117,000/-. Special damages required to be specifically pleaded and proved. In the instant case, the plaintiff had pleaded and proved the claim through production of the valuation report and receipts.
  4. The plaintiff was entitled to general damages for trespass. The issue that arose was as to what the measure of such damage would be. The measure of damages for trespass was the difference in the value of the plaintiff’s property immediately after the trespass or the costs of restoration, whichever was less. The plaintiff had only provided the court with the value of the excavated murram. The plaintiff had not adduced any evidence as to the state or the value of her property before and after the trespass which made it difficult to assess the general damages.
  5. There was no mathematical or scientific formula in trespass cases and the guiding factors were the circumstances in each case. The court took into account the fact that the damage occurred in a rather expansive parcel of land an award of Kshs. 10,000,000/- as general damages would be sufficient.
  6. Exemplary damages were placed at the discretion of the court, though, they were awarded with some degree of caution and in limited situations namely:
    1. oppressive arbitrary or unconstitutional action by servants of government;
    2. conduct calculated by the defendant to make him a profit which would well exceed the compensation payable to the plaintiff; or
    3. cases in which the payment of exemplary damages was authorized by statute.
    4. In the instant case, the circumstances did not warrant an award of exemplary damages.
  7. The plaintiff failed to adduce evidence in support environmental restoration and rehabilitation process to the suit properties. Hence, the court could not give the orders in vain, it could only give orders capable of being enforced. Furthermore, the court had already given an award of special and general damages which the court considered to be adequate in the circumstances.
Suit partly allowed with costs to the plaintiff.

Orders:
i. Plaintiff was awarded damages to be paid by defendant as follows;
  1. Special damages- Kshs. 74, 214, 500/-
  2. General damages- Kshs. 10, 000, 000/-
  3. Exemplary damages - Nil
             TotalKshs. 84, 214,500/-
ii. An order of permanent injunction issued restraining defendant or its employees, servants and agents from further trespassing unto plaintiff’s parcels of land.

 
Kenya Law
Case Updates Issue 047/2019
Case Summaries

CONSTITUTIONAL LAW The Foreign Judgment (Reciprocal Enforcement) Act does not apply to foreign judgments and orders in proceedings relating to custody of children

MAK v SNMM & another [2019] eKLR
Constitutional Petition 11 of 2018
High Court at Mombasa
M Thande, J.
September 20, 2019
Reported by Moses Rotich

Download the Decision

Constitutional Law-fundamental rights and freedoms-enforcement of-rights of children-doctrine of best interests of children-rule that custody of children of tender years should be vested in their mother unless exceptional circumstances existed necessitating departure from the rule-what amounted to exceptional circumstances-Constitution of Kenya, 2010, article 53; Children Act, section 4(2)
Civil Practice and Procedure-judgments-foreign judgments-enforcement of foreign judgments-application for enforcement and recognition of a foreign judgment-where the foreign judgment was issued by a court of a non-reciprocating country-whether a judgment or order from a non-reciprocating country was enforceable in Kenya-Foreign Judgment (Reciprocal Enforcement) Act, preamble & section 13; Foreign Judgments (Reciprocal Enforcement) (Extension of Act) Order, 1984, schedule, paragraph 2
Civil Practice and Procedure-judgments-foreign judgments-enforcement-where the foreign judgment related to custody and guardianship of children-what were the criteria for a foreign judgment or order to be enforceable in Kenya-whether the Foreign Judgment (Reciprocal Enforcement) Act applied to a judgment or an order in proceedings in connection with the custody or guardianship of children-Foreign Judgment (Reciprocal Enforcement) Act, section 3(3)(e)

Brief Facts:
The petitioner and the 1st respondent were married and had a child, AMK. The child was born in the year 2012. The family emigrated from Kenya to Canada, the home country of the petitioner. The petitioner averred that the 1st respondent and the child visited her relatives in Kenya and failed to return to Canada. The petitioner then moved to the High Court in Canada and obtained orders of permanent custody and immediate return of the child to the jurisdiction of that court.
The petitioner sought enforcement of the orders issued by the High Court of Canada in case number FC-13-043656-00. The petitioner also prayed for permanent custody and access to the child. On her part, the 1st respondent opposed the petition on grounds that the Foreign Judgment (Reciprocal Enforcement) Act did not apply to proceedings of custody of children.

Issue:

  1. Whether a judgment or order from a non-reciprocating country was enforceable in Kenya.
  2. What were the criteria for a foreign judgment to be enforceable in Kenya?
  3. Whether the Foreign Judgment (Reciprocal Enforcement) Act applied to a judgment or an order in proceedings in connection with the custody or guardianship of children.
  4. What amounted to exceptional circumstances required for a court to depart from the rule that custody of children of tender years ought to be awarded to the mother?
  5. Whether the petitioner could be awarded custody and permanent access to the child. Read More..

Relevant provisions of the law
Prisons Acts (Cap 90)
Section 46(1)(ii);
Provided that in no case shall—

(i) any remission granted result in the release of a prisoner until he has served one calendar month
(ii) any remission be granted to a prisoner sentenced to imprisonment for life or for an offence under section 296(1) or 297(1) of the Penal Code or to be detained during the President’s pleasure.

Held:

  1. The law relating to enforcement of foreign judgments was found in the Foreign Judgment (Reciprocal Enforcement) Act (the Act). The main objective of the Act was to make provision for the enforcement in Kenya of judgments given in other countries, which accorded reciprocal treatment to judgments given in Kenya. The order that the petitioner sought to have enforced by the instant Court was issued by the High Court in Canada. In order for the said order to be enforceable, it had to meet two criteria as provided by section 13 of the Act;
    1. the order should have been made by a court in a reciprocating country; and,
    2. it should be an order or judgment to which the Act applied.
  2. Section 13 of the Act gave the relevant Minister the mandate to declare a country a reciprocating country for purposes of the Act. Paragraph 2 of the Foreign Judgments (Reciprocal Enforcement) (Extension of Act) Order, 1984, listed in its schedule the reciprocating countries. From that schedule, Canada had not, by an order of the Minister, been declared a reciprocating country.
  3. The order of the enforcement of which the petitioner sought gave permanent custody of the child to the petitioner. Even if Canada was a reciprocating country, the petitioner would still run into headwinds as he would have to contend with the provisions of section 3(3)(e) of the Act which provided that the Act did not apply to a judgment or an order in proceedings in connection with the custody or guardianship of children.
  4. In matters concerning children, the Court had both constitutional and statutory obligation to ensure that the best interests of the child were of paramount consideration. Article 53(2) of the Constitution of Kenya, 2010 (the Constitution) provided that a child’s best interests were of paramount importance in every matter concerning the child. Section 4(2) of the Children Act was couched in similar terms. The best interests of the child should be the first and paramount consideration. All other interests had to take the back seat.
  5. Having been born in the year 2012, the child was seven years old. By dint of section 2 of the Children Act, she was a child of tender years. Courts had consistently upheld the rule that custody of children of tender years should be vested in their mother because mothers were best suited to exercise care and control of such children. However, a court could depart from that prima facie rule if there were sufficient reasons or exceptional circumstances to do so. Exceptional circumstances included;
    1. where the mother was unsettled;
    2. where the mother had taken a new husband;
    3. where her living quarters were in deplorable state; or,
    4. where her conduct was disgraceful and/or immoral.

    The instant petitioner had not stated that there existed any exceptional circumstances to warrant the departure from the general rule. The best interests of the child would be best served if she remained in the actual physical custody of the 1st respondent.

  6. Article 53 of the Constitution recognized and guaranteed the child parental care by both parents. It was generally understood that children who grew up with father absence or father deficit often ended up with social problems. In the instant petition, the child was seven years old. It was necessary that her father played an active role in her life notwithstanding the fact that he lived in another country. In order for the child to have a well-balanced life and to grow up without father deficit and its attendant social problems, it was imperative that the petitioner had unlimited access to the child.

Petition partially dismissed with no order as to costs; petitioner granted unlimited access to the child.

LABOUR LAW

Legal requirements relating to termination of an employment contract after a poor performance rating in a performance appraisal

National Bank of Kenya v Samuel Nguru Mutonya
Civil Appeal 118 of 2017
Court of Appeal at Nairobi
R N Nambuye, P O Kiage & S ole Kantai, JJA
August 6, 2019
Reported by Beryl Ikamari

Download the Decision

Labour Law-employment-employment contract-termination of an employment contract-validity of the reason for termination-poor performance-where an employee, who had a poor performance rating, was given a chance to improve-whether the termination of that employee’s contract of employment without an evaluation as to whether he had improved, constituted termination for a valid reason-Employment Act, 2007, section 41, 43 & 45.
Labour Law-employment-employment contract-termination of an employment contract-lawfulness of the procedure used to terminate an employment contract-notification of the reason for termination and according a fair hearing to the affected employee-whether an employee who was terminated without prior notice of the reasons for termination and being given a hearing was terminated in a manner that was procedural-Employment Act, 2007, section 41, 43 & 45.
Labour Law-employment -employment contract-termination of an employment contract-remedies for unlawful termination-reinstatement and terminal dues-whether the court could grant both the main relief and the alternative relief sought by a claimant-Employment Act, 2007, sections 49(3)(a) & 49(4).

Brief facts:
The respondent was employed as the appellant's Branch Operations Manager at the time of his termination. The reason for his termination was that he had undergone an appraisal and he was found to have unacceptable performance. After receiving a poor performance rating, he was offered an opportunity to improve but he was later terminated.
The respondent filed a claim at Employment and Labour Relations Court where he asserted that the reasons for his termination were malicious and that he was not accorded a fair hearing before being terminated. At that court, the respondent sought reinstatement and damages for unfair termination or in the alternative, he sought terminal dues amounting to Kshs. 38, 852, 055.00/=.
The Employment and Labour Relations Court made a finding in favour of the respondent whilst stating that the termination was not fair and that procedural requirements including notification and a fair hearing were not complied with. That court granted the various reliefs including reinstatement. The appellant appealed against that decision.

Issues:

  1. Whether an employee who received a poor performance rating and was given a chance to improve but was terminated without being assessed as to whether he had improved, was terminated for a valid reason.
  2. Whether the termination of an employment contract, without giving notice of the reasons for termination and according a hearing to the affected employee, entailed an unfair termination.
  3. Whether a trial court could award both the main relief and the alternative relief, sought by a claimant as remedies for unfair termination of an employment contract. Read More...

Held:

  1. As the first appellate court, the Court would revisit the evidence presented at the trial court afresh and analyse it in order to arrive at its own independent conclusions. In doing so, the Court would bear in mind the fact that it did not see or hear the witnesses as they testified.
  2. The procedure applicable to the termination of the respondent's employment contract was set out in sections 41, 43 and 45 of the Employment Act. The reason for the termination would have to be a valid reason. It would have to be related to the employee's conduct, capacity or compatibility. It was necessary for the employee to be notified of the reason for the termination and to be accorded an opportunity to respond to it.
  3. The reason offered for the respondent's termination was poor performance. The procedural requirements relating to termination of an employment contract were not followed when the respondent faced termination. There was no basis to interfere with the trial court's finding that the termination was unprocedural.
  4. The appellant terminated the respondent's employment contract in exercise of its managerial supervisory powers over the respondent who discharged his daily duties as an employee of the appellant. The exercise of such managerial powers would be open to scrutiny and interference by a court. That would include the application of sections 41, 43 and 45 of the Employment Act to redress grievances that could arise in employer/employee relationships.
  5. After the poor performance rating in 2013 resulting in the giving of an opportunity to the respondent for improvement, another performance appraisal ought to have been done in 2014 to confirm whether the respondent had improved. In the absence of proof relating to improvement or otherwise, the termination of the respondent's employment contract was unfair.
  6. Reinstatement as a remedy for unfair termination was provided for in section 49(3)(a) of the Employment Act and the considerations related to the grant of that remedy by the Court were provided under section 49(4) of the Employment Act. In the circumstances, an order of reinstatement was warranted as fault lay with the appellant for failure to re-evaluate the respondent's performance in 2014 before terminating him on account of poor performance. Other relief attendant to reinstatement, which included the payment of salary and benefits for the period that the respondent was unemployed, was also payable.
  7. Apart from awarding the main relief, the trial court awarded the alternative remedy. The award of remedies involved the exercise of judicial discretion. The Court would not interfere with such discretion unless it was satisfied that the trial court misdirected itself in some matter and as a result it arrived at a wrong decision or that it was manifest from the case as a whole that the trial court was clearly wrong in the exercise of discretion and had occasioned injustice.
  8. After awarding the main relief, the trial court had no mandate to award the alternative reliefs. The alternative reliefs were therefore granted in error.

Appeal partly allowed.
Orders:-

  1. The appellant lost its appeal against the main relief but succeeded on its appeal against the alternative reliefs.
  2. The orders on costs awarded by the trial court were affirmed.
  3. Each party was to bear its own costs of the appeal.
CONSTITUTIONAL LAW

High Court declines to issue orders for the setting up of a commission of inquiry to inquire into claims of widespread extra-judicial killings and enforced disappearances.

Apollo Mboya v Attorney General & 3 others; Kenya National Commission on Human Rights (Interested Party) & another
Petition 383 of 2017
High Court at Nairobi
J A Makau, J
July 29, 2019
Reported by Beryl Ikamari

Download the Decision

Constitutional Law-separation of powers-the Executive and the Judiciary-power to set up a commission of inquiry in public interest-where statute gave discretionary power to the President to set up a commission of inquiry-whether the Attorney-General could be compelled by a court to advise the President to set up a commission of inquiry- whether the Court could issue orders to compel the President to set up a commission of inquiry-Constitution of Kenya 2010, article 156(6); Commission of Inquiry Act, (Cap 102), section 3(1); Office of Attorney General Act, No 49 of 2012, section 6(5).
Constitutional Law- fundamental rights and freedoms-enforcement of fundamental rights and freedoms-remedies for violations of fundamental rights and freedoms-orders of mandamus and declarations-claim that enforced disappearances and extra-judicial killings had become widespread-effect of failure to exhaust alternative remedies, failure to prove infringement of specific rights and failure to prove non-performance of a public duty by the respondents.

Brief facts:
The petition was about alleged widespread enforced disappearances and extra-judicial killings in Kenya starting from February 2008. The petitioner sought various reliefs including the appointment of a judicial commission of inquiry under section 3 of the Commission of Inquiry Act. The purpose of the commission of inquiry was to bring to account those responsible for the crimes.
The 1st, 3rd and 4th respondents opposed the petition. They said that the 4th respondent treated extra-judicial killings as murder and investigated them. The 2nd and 3rd respondents said that they invited information from members of the public on enforced disappearances and deaths. They added that in some cases details relating to the investigations were not revealed because disclosure could prejudice very sensitive investigations.
The 2nd interested party also opposed the petition. It stated that the petitioner had not shown that the respondents had failed to perform a public duty or that they had infringed any legal rights. Therefore, according to them, the petition did not meet the required threshold for the grant of the reliefs sought.

Issues:

  1. Whether the Court could issue orders to compel the President to set up a commission of inquiry on grounds that enforced disappearances and extra-judicial killings had become widespread.
  2. Whether the Court could issue orders of mandamus to compel the Attorney-General to advise the President to set up a commission of inquiry.
  3. Whether state agencies had properly discharged their mandate on protection of life and human rights in light of allegations of widespread extra-judicial killings and enforced disappearances.
  4. Whether alternative remedies relating to claims of extra-judicial killings and enforced disappearances had to be exhausted before the filing of a petition.
  5. What threshold had to be met for the Court to grant remedies in a claim relating to widespread extra-judicial killings and enforced disappearances? Read More...

Held:

  1. Section 3(1) of the Commission of Inquiry Act provided that the President had power, where he considered it advisable, to set up a commission and appoint its commissioners, to inquire into the conduct of a public officer or the conduct or management of any public body or any other matter which was, in the opinion of the President, in public interest. There was no stipulation that the President could be compelled or supervised in the discharge of his mandate under section 3(1) of the Commission of Inquiry Act. The power to set up a commission was discretionary, not mandatory.
  2. Under section 6(5) of the Office of Attorney General Act, in exercising his powers or functions, the Attorney-General would not be under the direction or control of any person. The Office of the Attorney-General was therefore an independent office.
  3. Article 156(6) of the Constitution required the Attorney-General to promote, protect and uphold the rule of law and defend the public interest. In order to obtain relief, the petitioner had to show how the Office of the Attorney-General had abused its powers or failed to discharge its mandate under the Constitution. The petitioner had not done that.
  4. An order of mandamus would be issued to compel performance of a public duty which was imposed on a person or body by a statute, where that person or body failed to perform the duty to the detriment of a party, which had a legal right to expect the performance of the duty. The petitioners had not demonstrated that the respondents had a legal duty to advise the President to set up a commission of inquiry. It would be contrary to law for the Court to compel the Attorney-General to advise the President to set up a commission of inquiry. That would amount to a usurpation of the advisory role of the Attorney-General and it would go against the constitutional tenet of separation of powers.
  5. The grant of orders for the Attorney-General to advise the President would be in vain. Under section 3 of the Commission of Inquiry Act, the President would not be bound to follow such advice as the power to set up a commission of inquiry was solely within the discretion of the President. The Court would not act in vain.
  6. Article 3 of the International Convention for the Protection of All Persons from Enforced Disappearance obligated each State Party to take appropriate measures to investigate acts of enforced disappearance committed by persons or groups of persons acting without the authorization, support or acquiescence of the State and to bring those responsible to justice. It was the general duty of the state to protect the right to life and the rights and freedoms of persons.
  7. The petitioner did not show how state agencies failed to investigate deaths and disappearances alluded to in the petition. Under section 107 of the Evidence Act it was the person that made allegations that had the burden of proving them. The petitioner had not discharged that burden of proof to the required standard.
  8. The issues raised in the petition could have been raised through the relevant state agencies and the respondents, upon consideration, could have made a decision on whether to form a commission of inquiry or not. Court intervention was not warranted.
  9. The petitioner did not demonstrate that he had approached the Attorney-General for redress and that he had received a response that his request had been declined, in order to justify approaching the Court. Had he done that, the petitioner would have been at liberty to challenge the Attorney-General's administrative decision in court.
  10. Before remedies could be granted the petitioner had to demonstrate infringement of specific rights for which redress was sought. The petitioner produced newspaper cuttings as evidence of extra-judicial killings and the law was that newspaper cuttings were not admissible evidence. A report in a newspaper was hearsay and it was inadmissible, in the absence of the maker of a statement appearing in court and deposing to have produced the reported fact.
  11. Human rights reports were used by the petitioner to provide evidence of human rights abuses. The report adversely mentioned certain entities and persons who were not notified of the proceedings. The authors of the reports did not seek input from persons who they mentioned. A fair hearing included observance of the rule that no party should be condemned unheard. Without providing further evidence, the human rights reports were insufficient to show the true picture.
  12. Some cases relating to extra-judicial killings were already in court and others were under investigation. The affected families or persons were not enjoined to the petition to show how the conduct of investigations or prosecution of those cases was so inadequate as to warrant the setting up of a commission of inquiry.

Petition dismissed. Each party was to bear its costs..

LABOUR LAW

Legal requirements relating to termination of an employment contract after a poor performance rating in a performance appraisal

National Bank of Kenya v Samuel Nguru Mutonya
Civil Appeal 118 of 2017
Court of Appeal at Nairobi
R N Nambuye, P O Kiage & S ole Kantai, JJA
August 6, 2019
Reported by Beryl Ikamari

Download the Decision

Labour Law-employment-employment contract-termination of an employment contract-validity of the reason for termination-poor performance-where an employee, who had a poor performance rating, was given a chance to improve-whether the termination of that employee’s contract of employment without an evaluation as to whether he had improved, constituted termination for a valid reason-Employment Act, 2007, section 41, 43 & 45.
Labour Law-employment-employment contract-termination of an employment contract-lawfulness of the procedure used to terminate an employment contract-notification of the reason for termination and according a fair hearing to the affected employee-whether an employee who was terminated without prior notice of the reasons for termination and being given a hearing was terminated in a manner that was procedural-Employment Act, 2007, section 41, 43 & 45.
Labour Law-employment -employment contract-termination of an employment contract-remedies for unlawful termination-reinstatement and terminal dues-whether the court could grant both the main relief and the alternative relief sought by a claimant-Employment Act, 2007, sections 49(3)(a) & 49(4).

Brief facts:
The respondent was employed as the appellant's Branch Operations Manager at the time of his termination. The reason for his termination was that he had undergone an appraisal and he was found to have unacceptable performance. After receiving a poor performance rating, he was offered an opportunity to improve but he was later terminated.
The respondent filed a claim at Employment and Labour Relations Court where he asserted that the reasons for his termination were malicious and that he was not accorded a fair hearing before being terminated. At that court, the respondent sought reinstatement and damages for unfair termination or in the alternative, he sought terminal dues amounting to Kshs. 38, 852, 055.00/=.
The Employment and Labour Relations Court made a finding in favour of the respondent whilst stating that the termination was not fair and that procedural requirements including notification and a fair hearing were not complied with. That court granted the various reliefs including reinstatement. The appellant appealed against that decision.

Issues:

  1. Whether an employee who received a poor performance rating and was given a chance to improve but was terminated without being assessed as to whether he had improved, was terminated for a valid reason.
  2. Whether the termination of an employment contract, without giving notice of the reasons for termination and according a hearing to the affected employee, entailed an unfair termination.
  3. Whether a trial court could award both the main relief and the alternative relief, sought by a claimant as remedies for unfair termination of an employment contract. Read More...

Held:

  1. As the first appellate court, the Court would revisit the evidence presented at the trial court afresh and analyse it in order to arrive at its own independent conclusions. In doing so, the Court would bear in mind the fact that it did not see or hear the witnesses as they testified.
  2. The procedure applicable to the termination of the respondent's employment contract was set out in sections 41, 43 and 45 of the Employment Act. The reason for the termination would have to be a valid reason. It would have to be related to the employee's conduct, capacity or compatibility. It was necessary for the employee to be notified of the reason for the termination and to be accorded an opportunity to respond to it.
  3. The reason offered for the respondent's termination was poor performance. The procedural requirements relating to termination of an employment contract were not followed when the respondent faced termination. There was no basis to interfere with the trial court's finding that the termination was unprocedural.
  4. The appellant terminated the respondent's employment contract in exercise of its managerial supervisory powers over the respondent who discharged his daily duties as an employee of the appellant. The exercise of such managerial powers would be open to scrutiny and interference by a court. That would include the application of sections 41, 43 and 45 of the Employment Act to redress grievances that could arise in employer/employee relationships.
  5. After the poor performance rating in 2013 resulting in the giving of an opportunity to the respondent for improvement, another performance appraisal ought to have been done in 2014 to confirm whether the respondent had improved. In the absence of proof relating to improvement or otherwise, the termination of the respondent's employment contract was unfair.
  6. Reinstatement as a remedy for unfair termination was provided for in section 49(3)(a) of the Employment Act and the considerations related to the grant of that remedy by the Court were provided under section 49(4) of the Employment Act. In the circumstances, an order of reinstatement was warranted as fault lay with the appellant for failure to re-evaluate the respondent's performance in 2014 before terminating him on account of poor performance. Other relief attendant to reinstatement, which included the payment of salary and benefits for the period that the respondent was unemployed, was also payable.
  7. Apart from awarding the main relief, the trial court awarded the alternative remedy. The award of remedies involved the exercise of judicial discretion. The Court would not interfere with such discretion unless it was satisfied that the trial court misdirected itself in some matter and as a result it arrived at a wrong decision or that it was manifest from the case as a whole that the trial court was clearly wrong in the exercise of discretion and had occasioned injustice.
  8. After awarding the main relief, the trial court had no mandate to award the alternative reliefs. The alternative reliefs were therefore granted in error.

Appeal partly allowed.
Orders:-

  1. The appellant lost its appeal against the main relief but succeeded on its appeal against the alternative reliefs.
  2. The orders on costs awarded by the trial court were affirmed.
  3. Each party was to bear its own costs of the appeal.

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The Kenya Law Team

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