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Court of AppealPartially AllowedCivil Appeal No. 87 of 2015

Paul Billy Nyagilo v East African Portland Cement Co. Ltd [2017] KECA 483 (KLR)

Court of Appeal
16 June 2017
2,891 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 upheld a summary dismissal for gross misconduct but sent the employee's gratuity, leave and suspension salary claims back for a fresh hearing.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi (Githinji and G.B.M. Kariuki, JJ.A; judgment delivered under Rule 32(3) as Azangalala, JA had ceased to hold office) dismissed the main appeal in an employment dispute. The appellant, formerly Kisumu Depot Supervisor with East African Portland Cement Co. Ltd, was summarily dismissed in November 2010 after an audit revealed some 5,600 bags of cement, valued at over Shs. 4.1 million, could not be accounted for during his tenure. The Industrial Court (Makau, J.) dismissed his claim for notice pay, salary, gratuity, leave allowance, damages for unfair termination and exemplary damages. The Court of Appeal held that the employer proved, on a balance of probabilities, a valid and fair reason for dismissal under sections 43, 44 and 45 of the Employment Act: the disciplinary committee's findings were supported by credible evidence, the appellant's explanation rested on an undated blank cheque specifying no amount, and the procedure followed (show-cause letter, detailed defence, oral hearing, reasoned decision) was fair. The failure of the trial judge to consider written submissions caused no prejudice. However, the Court found the trial judge never determined the gratuity and leave allowance claims and gave no reasons for refusing the half salary due during suspension; it set aside the finding limiting the appellant to Kshs. 220,000 half salary and remitted the claims for salary during suspension, gratuity and leave allowances for rehearing on liability and quantum by a different Judge, with no orders as to costs.

Questions the Court framed

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

  1. 1.Whether the employer had a valid and fair reason to summarily dismiss the appellant for gross misconduct
  2. 2.Whether the termination was effected in accordance with a fair procedure
  3. 3.Whether the trial judge's failure to consider the appellant's written submissions vitiated the judgment
  4. 4.Whether the appellant's claims for gratuity, leave allowance and salary during suspension were properly determined

Key legal issues

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01

Validity of the reason for summary dismissal

Holding

The employer proved on a balance of probabilities that the appellant's negligence or breach of duty caused substantial loss of cement, constituting gross misconduct under section 44(4) of the Employment Act.

Reasoning

The disciplinary committee's findings, supported by the evidence of the credit manager and internal auditor, established a deficit of at least 5,400 bags during the appellant's tenure. The explanation of depot expenditure and a blank cheque was rejected: the cheque was undated and specified no amount, so it was not a valid cheque or an acknowledgement of receipt of cement. A valid and fair reason under section 45 existed.

p. 4
02

Procedural fairness of the termination

Holding

The termination followed a fair procedure: the appellant was issued a show-cause letter, filed a detailed defence, and was afforded an oral hearing before a disciplinary committee which gave detailed reasons.

Reasoning

The minutes showed the committee considered the evidence in great detail and gave detailed reasons. Although the appellant's internal appeal was not determined, it related only to conversion of the dismissal to early retirement, not the reasons for termination, so its non-determination caused no unfairness.

p. 5
03

Effect of the trial judge's failure to consider written submissions

Holding

Failure to consider written submissions did not vitiate the judgment where the decision rested on the pleadings and oral evidence and no prejudice resulted.

Reasoning

The appellate court noted the omission but held the decision was based on the memorandum of claim, defence and oral evidence; since the appellate court itself considered the submissions and found no merit, no prejudice was caused to the appellant.

p. 4
04

Claims for gratuity, leave allowance and salary during suspension

Holding

The trial judge failed to determine the gratuity and leave allowance claims and gave no reasons for declining the half-salary award during suspension; those claims were remitted for rehearing before a different judge.

Reasoning

There was insufficient evidence on the record to determine whether the appellant, who claimed continuous employment as a casual from 1993 and cited section 37 conversion, earned gratuity and in what amount. Section 18(4) preserves some benefits despite lawful summary dismissal, warranting remittal on both liability and quantum.

p. 5

Legal principles established

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  • The reasonableness of an employer's decision to terminate is assessed objectively as one a reasonable employer could have taken, not by the court substituting its own standard.
  • The reason for termination is what the employer genuinely believed to exist at the time of termination.
  • Disciplinary proceedings are not criminal trials; the employer need only establish misconduct on a balance of probabilities.
  • Under section 18(4) of the Employment Act, an employee retains entitlement to certain benefits notwithstanding a lawful summary dismissal.

Court orders

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  1. 1.Appeal against termination of employment dismissed together with the claim for notice pay and damages
  2. 2.Decision of the trial judge that the appellant was only entitled to half salary in the sum of Kshs. 220,000 set aside
  3. 3.Appellant's entire claim for salary during suspension, gratuity and leave allowances remitted for re-hearing on liability and quantum by a different Judge
  4. 4.No orders as to costs

The bench

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

majority

Wrote the judgment

On appeal from
Industrial Court of Kenya (Employment and Labour Relations Court) at Nairobi
Industrial Cause No. 1543 of 2013
Jurisdiction invoked
First appeal from the Industrial Court of Kenya; judgment delivered under Rule 32(3) of the Court of Appeal Rules

Relief refused

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Salary in lieu of notice, salary for August to November 2010, damages for unfair termination and exemplary/punitive damages

Employment was lawfully terminated, so these claims could not stand

p. 5

Reversal of the summary dismissal

Employer established on balance of probabilities a valid and fair reason and followed fair procedure

p. 5

Costs

No orders as to costs

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.

the reasonableness of the decision of the employer is not to be judged by what the court thinks should have been a reasonable decision, but on whether the particular decision was a decision that a reasonable employer could have taken in the particular circumstances of the case.
p. 4Standard for reviewing an employer's decision to terminate
The disciplinary proceedings were not criminal proceedings charging the appellant with the theft of the cement or the proceeds of cement, thus requiring a high degree of proof.
p. 4Standard of proof in disciplinary proceedings
For the foregoing reasons, the appeal against the termination of employment is dismissed together with claim for notice pay and damages with no orders as to costs.
p. 5Disposition - dismissal of appeal against termination
The appellant’s entire claim for salary during suspension, gratuity and leave allowances is remitted for rehearing on liability and quantum by a different Judge.
p. 5Disposition - remittal of monetary claims

Issues in the judgment

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minor

The judgment refers to the trial judge variously as Makau, J. and Nzioki wa Makau J. in the coram; the half salary figure is also stated inconsistently as Shs. 222,000 in the body and Kshs. 220,000 in the orders

minor

The coram lists three judges but the judgment states it was delivered by two judges under Rule 32(3), the third having ceased to hold office

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Paul Billy Nyagilo v East African Portland Cement Co. Ltd [2017] KECA 483 (KLR)", Case Analysis (2017). Civil Appeal No. 87 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/483/eng@2017-06-16

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