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Court of AppealDismissedCivil Appeal No. 15 of 2014

Khamis v Oxford University Press (E.A) Ltd (Civil Appeal 15 of 2015) [2017] KECA 480 (KLR)

Court of Appeal of Kenya
9 June 2017
PWP. N. WakiRNR. N. NambuyeMartha Karambu KoomeM. K. Koome
4,242 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed an employer can lawfully fire for poor performance but must still give the employee a hearing before doing so.

What this practically means

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Executive summary

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The Court of Appeal (Waki, Nambuye and Koome, JJ.A) heard a first appeal by Naima Khamis against the Industrial Court's award (Rika J., 19 October 2012) which found her dismissal by Oxford University Press (E.A) Ltd after 32 years of service substantively justified but procedurally unfair, awarding her five months' gross salary (Kshs. 908,710) as compensation under section 45 of the Employment Act while rejecting reinstatement, service pay, bonus, medical reimbursement and costs. The appellant sought enhanced compensation of up to twelve months' salary and costs; the respondent cross-appealed against the finding of procedural unfairness. The Court reaffirmed the framework of sections 41, 43, 45 and 47(5) of the Employment Act: the employee bears the burden of proving unfair termination while the employer must justify the grounds for termination. It held that the reasons for termination - poor performance, insubordination and disloyalty - were valid and proven, but that no evidence showed the appellant was heard before dismissal, so the termination was procedurally improper, settling the cross-appeal. On quantum, the Court held that compensation under section 49(1)(c) is discretionary, capped at twelve months, and that an appellate court may not substitute its own view absent misdirection or clear wrongness. The double jeopardy argument was rejected as unpleaded new matter, since pleadings bind parties and courts and new issues cannot be introduced by submissions on appeal. On costs, the Court held that in labour relations claims costs do not automatically follow the event. Both the appeal and cross-appeal were dismissed, with each party bearing their own costs of the appeal and cross-appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial Judge erred in holding the termination of the appellant was substantively fair except for the procedure that did not allow the appellant an oral hearing of the reasons for termination
  2. 2.Whether the award of 5 months' salary instead of 12 months was reasonable
  3. 3.Whether the appellant, having succeeded partially, was entitled to be awarded costs
  4. 4.Whether the cross-appeal should be allowed by dismissing the appeal with costs

Key legal issues

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01

Whether the termination was substantively fair

Holding

The termination was substantively justified: the employer proved valid reasons of poor performance, insubordination and disloyalty, and the trial Judge's finding could not be faulted.

Reasoning

Under section 43(1) of the Employment Act the employer must justify the reasons for termination; under section 47(5) the employee bears the burden of proving unfair termination while the employer bears the burden of justifying the grounds. The respondent produced correspondence and an appraisal (39% performance) substantiating poor performance, insubordination and carting away work products. The appellant did not deny her poor performance. The warning letters and documented process supported the validity of the reasons.

p. 5
02

Whether the termination was procedurally fair

Holding

The termination was procedurally unfair because the appellant was not accorded a hearing as required by section 41 of the Employment Act.

Reasoning

Section 41 requires an employer, before terminating on grounds of misconduct, poor performance or physical incapacity, to explain the reasons to the employee in a language the employee understands, in the presence of another employee or shop floor union representative, and to hear and consider representations. The respondent led no evidence that the appellant was given a chance to be heard prior to dismissal. Section 45(4)(b) requires the employer to act in accordance with justice and equity.

p. 5
03

Whether the 5 months' salary compensation instead of 12 months was reasonable

Holding

The award of 5 months' gross salary was a proper exercise of the trial Judge's discretion under section 49(1)(c) of the Employment Act and would not be disturbed.

Reasoning

The number of months' compensation under section 49(1)(c), capped at twelve, is left to the court's discretion, which appellate courts interfere with sparingly. It was not demonstrated that the trial Judge misdirected himself, acted on wrong principles, or took into account extraneous matters. Damages cannot be upset merely because another judge would have awarded more; the appellate court is not entitled simply to substitute its own view where there was no improper appreciation of the evidence or law.

p. 7
04

Whether the appellant was entitled to costs having partially succeeded

Holding

The trial Judge's order that each party bear their own costs was a lawful exercise of discretion under section 12(4) of the Employment and Labour Relations Court Act.

Reasoning

Section 12(4) of the Employment and Labour Relations Court Act gives the court discretion to make such orders as to costs as it considers just. Unlike ordinary civil claims, costs in labour relations claims do not automatically follow the event. The appellant, though partially successful, had the bulk of her claims dismissed, and no demonstrable error amounting to illegality was shown in the costs order.

p. 7
05

Whether the 'double jeopardy' argument based on prior punishments could be raised on appeal

Holding

It could not: the argument was new matter introduced by submissions on appeal and was therefore impermissible.

Reasoning

Pleadings bind both the parties and the court; they define and narrow the issues and give fair notice. The allegation that the appellant had already been punished for the same wrongs was never pleaded at trial, so neither the trial Judge nor the parties had an opportunity to deal with it. New issues cannot be introduced by submissions, especially at the appellate stage.

p. 5

Legal principles established

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  • On a first appeal, the appellate court must reconsider and re-evaluate the entire evidence afresh, while making due allowance for having neither seen nor heard the witnesses
  • A party cannot introduce new allegations by way of submissions, more so at the appellate stage, since pleadings bind both the parties and the court
  • An appellate court will interfere with a trial judge's exercise of discretion only sparingly, where the judge misdirected himself or was clearly wrong resulting in injustice
  • Costs in employment and labour relations claims do not automatically follow the event, unlike in ordinary civil claims, because section 12(4) of the Employment and Labour Relations Court Act vests a discretion in the court

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The cross-appeal is dismissed
  3. 3.Each party to bear their own costs of the appeal and cross-appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

PW
majority
RN
majority
Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority
On appeal from
Industrial Court of Kenya at Nairobi (now Employment and Labour Relations Court)
Industrial Court of Kenya Cause No. 595 of 2010
Jurisdiction invoked
First appeal to the Court of Appeal under the applicable appellate statute (not expressly cited in the judgment); the appeal lay from the Industrial Court's award

Relief refused

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Enhanced compensation of up to 12 months' salary in place of the 5 months' salary awarded

The award under section 49(1)(c) of the Employment Act is discretionary and no improper exercise of that discretion was demonstrated

p. 7

Costs of the suit in favour of the appellant

Costs in labour relations claims are discretionary and do not automatically follow the event; the trial Judge's discretion was not shown to have been wrongly exercised

p. 8

The respondent's cross-appeal seeking reversal of the finding of procedural unfairness

No evidence was led to show the appellant was accorded a chance to be heard prior to dismissal

p. 5

Costs

Each party to bear their own costs of the appeal and cross appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We find ourselves agreeing with the conclusions by the learned trial Judge that the termination of the appellant was substantively justified but procedurally defective.
p. 6substantive versus procedural fairness in termination
In a claim for unfair termination of employment or wrongful dismissal, the burden of proving that an unfair termination of employment or wrongful dismissal has occurred rests on the employee, while the burden of justifying the grounds for the termination of employment or wrongful dismissal rests on the employer
p. 4burden of proof in unfair termination claims
The assessment of damages cannot merely be upset simply because another Judge would have issued a higher award. It is not our mandate to merely substitute the Judges conclusion when we have pointed out there was no improper appreciation of the evidence or the law.
p. 7appellate restraint on discretionary awards of compensation
Therefore, in our considered view, costs in labour relations claims do not automatically follow the event unlike in civil claims.
p. 8costs in employment and labour relations claims
For the aforesaid reasons we find both the appeal and cross appeal lacking in merit, they are both dismissed. As we do not wish to set these parties against each other anymore, just like the learned trial Judge, we are minded to order each party to bear their own costs of the appeal and cross appeal.
p. 8final orders and disposition

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Khamis v Oxford University Press (E.A) Ltd (Civil Appeal 15 of 2015) [2017] KECA 480 (KLR)", Case Analysis (2017). Civil Appeal No. 15 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/480/eng@2017-06-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.