Lake Victoria North Water Services Board & another v Alfred Odongo Amombo [2018] KECA 257 (KLR)
The bottom line
#Kenya's Court of Appeal upheld an employer's suspension of its CEO, ruling courts cannot decide issues no one pleaded or grant reliefs never requested.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned judge went beyond the scope of the claim by entering judgment on matters that were not pleaded by the respondent
- 2.Whether it was within the jurisdiction of the court to stop the disciplinary proceedings
- 3.Whether the learned judge shifted the burden of proof to the appellants
Key legal issues
#Whether the trial court erred by determining an unpleaded issue - that suspension was unlawful because the contract did not provide for it
Yes - the issue was not pleaded, framed or submitted on, and the learned judge acted in excess of jurisdiction in an adversarial system, making a substantial error of law.
The respondent's statement of claim was based on unlawful and unfair suspension on procedural grounds, not on the absence of a contractual basis for suspension. The respondent did not testify on that issue, and his counsel's submissions did not raise it. As the parties are bound by their pleadings, and the court is bound by them, a decision on an issue not raised by or against a party is equivalent to not hearing that party and constitutes a denial of justice.
Whether the court could substitute its own view of the reasons for suspension
No - the section 43(2) genuine-belief test applies to suspension, and the court defers to a genuine decision of the employer.
Suspension pending investigations is not an express termination requiring the employer to prove reasons under sections 43(1) and 45(2). Where suspension is the basis of the claim, the genuine-belief principle in section 43(2) applies in equal force. The court should not usurp the decision maker's function by imposing its own view of what should have been a reasonable decision, and the finding that the respondent had satisfactorily explained his failure to implement the signatories resolution was unsupported by evidence.
Whether the suspension and disciplinary process accorded the respondent a fair hearing
Yes - the respondent was served with a notice to show cause, responded in writing, and made oral representations before the decision.
The respondent's counsel's ground of procedural unfairness was not substantiated. The appellants specified the grounds of the intended suspension in the notice to show cause, gave the respondent an opportunity to explain in writing, which he did, and he appeared before the appellant and made oral representations before a decision was made. The court was satisfied that fair procedure was accorded.
Whether the trial court properly found that the respondent's employment had been terminated
No - the finding was made on an unpleaded issue, without evidence, and in excess of jurisdiction.
The respondent's claim was solely based on unfair and unlawful suspension, and he did not claim to have been dismissed. The 2nd appellant stated that the Board resolution of 26th January 2017 was not acted upon and the respondent had not been dismissed. The status quo order in place expressly provided that the claimant remained on suspension but no disciplinary hearing should take place. The finding of termination therefore rested on no evidence and exceeded the scope of the claim.
Whether the trial court's orders of reinstatement and restraint from further disciplinary action were properly granted
No - they were not prayed for in the statement of claim.
The only reliefs sought by the respondent were the lifting of the suspension, general damages for unlawful suspension and costs. Reinstatement and restraint orders went beyond those prayers and were therefore erroneously granted.
Legal principles established
#- The burden of proof under section 47(5) of the Employment Act for unfair termination applies equally to complaints of unfair or unlawful suspension.
- Where suspension, not termination, is the basis of the claim, the principle in section 43(2) of the Employment Act as to the employer's genuine belief in the reasons applies equally to reasons for suspension.
- A court is ill equipped to make business decisions for enterprises and organisations and will defer to the decision maker where the decision is genuine.
- A judge who determines an issue not arising from the pleadings and not argued by the parties acts in excess of jurisdiction in an adversarial system.
Court orders
#- 1.The appeal is allowed
- 2.The judgment and decree of the Employment and Labour Relations Court is set aside
- 3.The respondent's claim is dismissed
- 4.No orders as to the costs of the appeal and the claim in the court below
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court at Kisumu (High Court of Kenya)
- ELRC Cause No. 16 of 2017
- Jurisdiction invoked
- First appeal to the Court of Appeal against the judgment of the Employment and Labour Relations Court (not stated by reference to a specific constitutional or statutory provision in the judgment)
Relief refused
#Respondent's claim for lifting of suspension, reinstatement and general damages for unlawful suspension
The claim was dismissed; the suspension was held to be justified and the trial court had acted in excess of jurisdiction
Costs
No orders as to costs - 'It is just in the circumstances that no order as to costs should be made.'
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.
For the foregoing reasons, the appeal is allowed. The judgment and decree of the Employment and Labour Relations Court is set aside and the respondent’s claim is dismissed.
There shall be no orders as to the costs of the appeal and the claim in the court below.
In our view, that burden of proof applies mutatis mutandis to a complaint for unfair and unlawful suspension.
where suspension is the basis of the claim and not the termination itself, like in the present case, the principle in section 43(2) aforesaid applies in equal force to reasons for suspension.
A court is ill equipped to make business decisions for the business enterprises and organizations.
In the premises, the learned Judge acted in excess of jurisdiction in an adversarial system and thus made a substantial error of law.
We are satisfied that the respondent was accorded a fair procedure.
Issues in the judgment
#The judgment inconsistently dates the Employment Act in a quotation from the respondent's letter, citing 'the Employment Act, 2017' when the Act in force and cited elsewhere is the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lake Victoria North Water Services Board & another v Alfred Odongo Amombo [2018] KECA 257 (KLR)", Case Analysis (2018). Civil Appeal No. 78 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/257/eng@2018-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.