Regent Management Limited v Wilberforce Ojiambo Oundo
The bottom line
#Kenya's Court of Appeal confirmed a CEO's dismissal was unfair, but cut his compensation because the employer's contract only allowed three months' notice.
What this practically means
#Executive summary
#Key legal issues
#Whether pending criminal proceedings barred the civil suit
They did not; the learned Judge did not err in entertaining and determining the suit during the pendency of the criminal proceedings.
The court distinguished internal disciplinary proceedings (contract-based, balance of probability) from criminal proceedings (proof beyond reasonable doubt), citing Wigglesworth and Shollei. It concurred with the majority in Attorney General v Andrew Maina Githinji that a dismissed employee need not await criminal proceedings' outcome before challenging a dismissal. The respondent had also since been acquitted.
Whether the reasons for termination were valid
The appellant failed to establish valid reasons; the charge of losing Kshs.5,000,000 was dropped by the disciplinary committee and no evidence linked the respondent to the loss.
The appellant produced no financial policies or standard operating procedures; its own audit witness testified no finance manual existed. The disciplinary committee dropped the loss charge as unprovable. The salary-review allegation was moot (Board adopted it), the NHIF contract had already ended, and no evidence supported the other allegations.
Whether the termination was procedurally fair
It was not; the appellant committed glaring procedural flaws including denial of documents, non-payment of salary during suspension, and failure to interview the respondent during the forensic audit.
The respondent was left in limbo after his 30-day suspension expired, was denied certified copies of documents integral to his defence, was not interviewed during investigations despite the gravity of the allegations, and his salary was withheld without reason. His non-attendance at the hearing did not cure these flaws.
Whether the quantum of damages was properly awarded
Partly not; the 12 months' compensation lacked reasons and exceeded the contract term, and the leave pay award was unproven special damages.
The trial judge gave no reasons for awarding maximum compensation under Section 49, failing to act judiciously; compensation should have been within the contract, which was terminable by three months' notice. The 50 days' leave pay was special damages that the respondent merely specified without proving; the onus was on him.
Legal principles established
#- The institution of criminal proceedings is not a bar to civil proceedings on similar facts, and a dismissed employee need not await the outcome of criminal proceedings before challenging a dismissal founded on concurrent disciplinary processes.
- Internal disciplinary proceedings and criminal proceedings are distinct: the former is anchored on the contract of employment with proof on a balance of probability, the latter requires proof beyond reasonable doubt.
- Special damages must be both pleaded and proved; the burden of proving them rests on the claimant.
- A court will only disturb a trial judge's award of damages where the judge acted on a wrong principle or the amount is an entirely erroneous estimate.
- Compensation for unfair termination should ordinarily be confined to the terms of the contract of employment, and a judge awarding maximum compensation under Section 49 of the Employment Act must give reasons.
Court orders
#- 1.Setting aside the award of 12 months' salary as compensation for unfair termination
- 2.Setting aside the award of payment in lieu of 50 days' leave (Kshs. 552,183)
- 3.Upholding the rest of the trial court's award (3 months' salary in lieu of notice, salary for August to 22nd November 2010, and prorata gratuity)
- 4.Each party to bear its own costs
- On appeal from
- Employment and Labour Relations Court at Nairobi
- Industrial Cause No. 200 of 2011
- Jurisdiction invoked
- First appellate jurisdiction over the Employment and Labour Relations Court; Section 35(4) of the Employment Act invoked as the substantive framework
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Regent Management Limited v Wilberforce Ojiambo Oundo", Case Analysis (2018). Civil Appeal 106 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/883/eng@2018-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.