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Court of AppealDismissedCivil Appeal 213 of 2019· [2024] KECA 1961 (KLR)

Mereka v Muthee

Court of Appeal
20 December 2024
DMD. K. MusingaSKS. Gatembu KairuJMJ. Mativo
2,588 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is a second appeal against the High Court's dismissal of the appellant's appeal from a Magistrates' Court award in favour of the respondent, an advocate summarily dismissed in November 1999 while serving a three-month resignation notice from the appellant's law firm. The dismissal was grounded on an alleged intention to steal a copy of the Local Government Act, which the respondent had left at the firm's front desk for collection by a colleague advocate under an established practice of exchanging resource materials. The trial court awarded the respondent one month's salary in lieu of notice (Ksh.72,500) and 16 days' pro rata salary (Ksh.38,600), subject to PAYE; the High Court (Sergon, J.) affirmed in its entirety. The Court of Appeal, confined to matters of law on second appeal, framed two issues: whether there were sufficient grounds for summary dismissal, and whether a hearing was necessary. It held that the evidence - the envelope left in plain sight and the colleague's corroborated testimony that the Act would be returned - did not support any reasonable suspicion of theft, and that the appellant acted on mere suspicion. It further held, following its decision in Cooperative Bank of Kenya Limited v Yator, that even under the repealed Employment Act, procedural fairness and a hearing were necessary prerequisites before summary dismissal, dispensable only in demonstrated exceptional circumstances. The appeal was dismissed with no orders as to costs, the respondent not having appeared.

Key legal issues

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01

Whether there was reasonable and sufficient grounds to suspect the respondent of a criminal offence justifying summary dismissal

Holding

No reasonable suspicion existed; the appellant acted on mere suspicion which cannot justify summary dismissal.

Reasoning

The respondent left a copy of the Local Government Act in an envelope at the front desk with a secretary, in plain eyesight, for a colleague advocate who confirmed she would return it after use. The court found this practice of exchanging resource materials corroborated and inconsistent with an intent to steal. The suspicion of intended theft did not align with the evidence presented.

p. 4
02

Whether the respondent was entitled to be heard before summary dismissal

Holding

Yes; the allegations were serious and procedural fairness was a necessary prerequisite even under the repealed Employment Act.

Reasoning

Relying on its own decision in Cooperative Bank of Kenya Limited v Yator, the court held that even under the repealed legislation, an employer must give an employee a fair hearing before termination, and that dispensing with a hearing is permissible only in exceptional circumstances which the employer must demonstrate. None were shown here.

p. 4

Legal principles established

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  • Even under the repealed Employment Act, an employer must afford an employee procedural fairness, including a hearing, before summary dismissal; mere suspicion cannot justify dismissal.
  • On a second appeal, the Court of Appeal is confined to matters of law unless the lower courts considered matters they should not have, failed to consider matters they should have, or the decision is perverse.

Court orders

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  1. 1.Appeal dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Employment Act, Cap 226section 17(g)
  • Employment Act, No. 1 of 2007

Cases cited (6)

  • Timothy Isaac Bryant & 2 Others v Inspector General of Police & 7 Others
    [2014] eKLR

    Definition of reasonable suspicion as a particularized or objective basis supported by specific and articulable facts

  • Rift Valley Textiles Limited v Edward Onyango Oganda
    [1994] eKLR, CA No. 27 of 1992

    Proposition that rules of natural justice are irrelevant to a simple contract absent a specific provision (relied on by appellant)

  • Maina v Mugiria
    [1983] KLR 78

    Second appeals confined to matters of law

  • Kenya Breweries Ltd v Godfrey Odongo
    Civil Appeal No. 127 of 2007

    Second appeals confined to matters of law

  • Stanley N. Muriithi & Another v Bernard Munene Ithiga
    [2016] eKLR

    Second appeals confined to matters of law

  • Cooperative Bank of Kenya Limited vs Yator
    (Civil Appeal 87 of 2018) [2021] KECA 95 (KLR)

    Fair hearing is a necessary prerequisite before termination even under the repealed Employment Act

On appeal from
High Court of Kenya at Nairobi
Civil Appeal No. 711 of 2003
Jurisdiction invoked
Second appeal to the Court of Appeal confined to matters of law (Court of Appeal jurisdiction; see Maina v Mugiria [1983] KLR 78)

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, "Mereka v Muthee", Case Analysis (2024). Civil Appeal 213 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1961/eng@2024-12-20

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