Tabitha Mumbua Kimongo v Shrink Pack Limited
The bottom line
#Kenya's Court of Appeal dismissed an employee's unfair termination appeal, confirming you cannot raise new claims like constructive dismissal mid-appeal and employer need not pay damages where employee misconduct drove the exit.
What this practically means
#Executive summary
#Key legal issues
#Whether constructive dismissal could be raised on appeal
No; the issue was not raised in the memorandum of appeal and the Court declined to entertain it.
The Court applied the rule barring appellants from arguing grounds not set out in the memorandum of appeal without leave. Allowing a party to change its case at submissions stage would convert the appeal into a trial in disguise, depriving the Court of the benefit of the first instance court's findings on the new issue. It therefore declined the invitation to address constructive dismissal.
Whether the appellant was unfairly terminated
The trial court found only a violation of the right to fair labour practices for failure to regularize desertion with a termination letter; that finding, and the allocation of the burden of proof under section 47(5), were upheld.
The employee bears the burden of establishing dismissal under section 47(5) of the Employment Act, while the employer must justify fairness. The appellant's e-mail of 5th October 2013 admitted blame and took full responsibility for lateness and absence. Nothing stopped the respondent from summarily dismissing the appellant in writing or following due process; the failure to regularize the desertion was the unfair labour practice found by the trial court.
Whether the trial judge misdirected herself in declining to award damages despite finding compensation was payable
No; the decision was a discretionary one, properly taken in view of the appellant's misconduct, and the appeal court would not interfere.
The award of damages is an exercise of judicial discretion. Following Mbogo v Shah and later authorities, an appellate court intervenes only where the discretion was exercised on wrong principles, irrelevant considerations, or a mistake of fact. The trial judge considered the appellant's gross misconduct, admissions, apologies and warning letters, and the appellant failed to demonstrate any abuse or misdirection of discretion.
Legal principles established
#- In dismissal disputes the employee bears the burden of proving the fact of dismissal and the employer bears the burden of justifying the fairness of the dismissal; the burden does not shift between the parties.
- An appellate court may not interfere with a lower court's exercise of judicial discretion unless the court misdirected itself or was clearly wrong, resulting in injustice.
- A party may not raise a new ground or issue on appeal without leave where it was not pleaded in the memorandum of appeal.
- On a first appeal, the Court of Appeal's role is to re-evaluate, re-assess and re-analyze the evidence before the trial court and draw its own conclusions.
Court orders
#- 1.Dismissal of the appeal with costs to the respondent
- 2.Declaration that the dismissal of the appeal does not preclude the respondent from paying the appellant the September 2013 salary and leave days due it had offered, if still unpaid
- On appeal from
- Employment and Labour Relations Court, Nairobi
- ELRC Cause No. 92 of 2014
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules against the judgment of the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Musyoka t/a Jana Pestcon v Mnyika (Appeal E186 of 2024) [2025] KEELRC 376 (KLR)[2025] KEELRC 376 (KLR)13 Feb 2025applied
Cite this brief
#Cite this brief
Caselaw, "Tabitha Mumbua Kimongo v Shrink Pack Limited", Case Analysis (2024). Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/678/eng@2024-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.