Peter Otieno Opollo v Board of Governors Kisumu Polytechnic College & another [2013] KECA 70 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a wrongfully terminated employee who received pay in lieu of notice cannot get reinstatement or extra damages.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether, having been paid salary in lieu of notice, gratuity and bonus, the appellant was entitled to reinstatement or general damages for wrongful termination
- 2.Whether the High Court erred in finding that the sum of Kshs.136,697/= in pay in lieu of notice was settled by the respondents
- 3.Whether the High Court erred in not setting aside the termination dated 24th November 2006 despite finding it unlawful
Key legal issues
#Measure of damages for wrongful termination where the contract contains a valid termination clause
Damages are limited to pay in lieu of notice and contractual dues; the appellant was properly awarded only what he would have received on lawful termination
The Court distinguished C.P.C. Industrial Products v Omweria Ngima, where damages beyond notice were awarded because the employer acted with malice and the termination clause was defective. Here the Collective Agreement contained a clear termination clause providing three months' notice or pay in lieu, and the appellant had been paid gratuity, bonus and salary in lieu. Following Rift Valley Textiles and Ronald Kimatu Ngeli, the High Court properly limited the remedy to contractual dues.
Availability of reinstatement as a remedy
Reinstatement was not available where the employer was contractually entitled to terminate and the employee had been paid all dues
The High Court agreed with the Chief Magistrate that the 1st respondent was contractually entitled to terminate the appellant's services. Having found all dues paid, the issue of reinstatement was determined. The Court reaffirmed that employment law does not contemplate forcing an employee upon an unwilling employer, citing Kenneth Karisa Kasemo v Kenya Bureau of Standards.
Legal principles established
#- Where a contract provides for termination by notice or pay in lieu, damages for wrongful termination are limited to salary in lieu of notice and contractual dues, not general damages or salary to retirement
- An employee cannot be reinstated against the employer's will; courts will not force an employee upon an employer
- General damages are not awardable merely because employment was not terminated in accordance with the termination clause, absent malice or ulterior motive
Court orders
#- 1.The appeal is dismissed
- 2.The 1st respondent to issue a fresh cheque in replacement of the stale cheque for Kshs.136,697/=
- 3.Each party to bear his/its own costs of the appeal and the withdrawn cross appeal
- 4.The order on costs of the appeal to the High Court is not disturbed
- 5.The 1st respondent to bear the appellant's costs before the Chief Magistrate's Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisumu
- H.C.C.A. No. 25 of 2009
- Jurisdiction invoked
- First appeal from the High Court exercising appellate jurisdiction over the Chief Magistrate's Court (Court of Appeal appellate jurisdiction; no specific constitutional/statutory provision quoted in the judgment)
Relief refused
#Reinstatement to employment
The law does not normally force an employee upon an employer; payment of all contractual dues determined the issue of reinstatement
General damages beyond salary in lieu of notice / salary to age of retirement
Damages for wrongful termination are limited to what the employee would have been paid on lawful termination per the contract; C.P.C. Industrial Products was distinguishable on its facts
Costs
Each party bears his/its own costs of the appeal and the withdrawn cross appeal; the order on costs of the appeal to the High Court is not disturbed; the 1st respondent bears the appellant's costs before the Chief Magistrate's Court
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
.. even if 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.
We have said enough to show that this appeal cannot succeed. It is dismissed. The cheque which was ordered made to the appellant must since have become stale. We order that the 1st respondent issues a fresh one in replacement thereof.
With regard to costs, given the circumstances of this case and the previous relationship between the parties, we order that each party bears his/its own costs of this and the withdrawn cross appeal.
For the avoidance of doubt we also order that the 1st respondent bears the appellant's costs before the Chief Magistrate's Court.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Otieno Opollo v Board of Governors Kisumu Polytechnic College & another [2013] KECA 70 (KLR)", Case Analysis (2013). Civil Appeal No. 136 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/70/eng@2013-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.