Attorney General v Asitiba
The bottom line
#Kenya's Court of Appeal upheld a finding that a public-interest retirement was unfair, but slashed the damages award from Kshs 6 million to Kshs 165,000.
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 trial court erred in reaching the conclusion that the evidence of the respondent was uncontroverted and in making adverse inferences from the appellant's failure to call a witness
- 2.whether the trial court erred in finding that the termination of the respondent's employment was malicious, actuated by ulterior motive, discriminatory unfair and unlawful
- 3.whether the trial court erred in invoking the doctrine of legitimate expectations and common law in awarding damages of Kshs 6,000,000 to the respondent
Key legal issues
#Adverse inference from failure to call a witness and burden of proof
The trial court erred: non-rebuttal does not automatically prove a claim; the claimant must still discharge the burden on a balance of probabilities, and the particulars of malice were not proved.
Section 107 of the Evidence Act places the initial onus on the claimant. While failure to rebut credible evidence may shift the onus, the standard of proof does not change in the absence of rebuttal. The court found the malice allegations rested only on the respondent's testimony about events five to nine years earlier, and his apologetic letters cast doubt on his account, so malice was not proved.
Validity of retirement in the public interest
The retirement was unfair and unlawful because the employer failed to justify it with valid, demonstrable grounds amounting to public interest.
Applying Marete v Teachers Service Commission, an employer invoking public interest must show the decision is driven by a legitimate public policy objective and follows fair procedure. The letter cited only vague 'numerous complaints' without particulars or evidence, and no evidence was led on compliance with regulation 28(2) of the JSC Regulations. The finding of unfair and unlawful termination was therefore upheld.
Unpleaded doctrine of legitimate expectation
The trial court erred in invoking the doctrine of legitimate expectation, which was nowhere pleaded by the respondent and was raised suo motu by the court.
Reviewing the pleadings, the court found the respondent never raised legitimate expectation. Relying on the Supreme Court's decision in Kalpana Rawal v JSC, a court will not base its decision on unpleaded issues, and the exception for evidence-led unpleaded issues did not avail the respondent here. The appellant's ground on this point succeeded.
Quantum of damages under the repealed Employment Act, 1976
Damages were limited to three months' salary in lieu of notice (Kshs. 165,000) under section 16 of the Employment Act, 1976; the Kshs. 6,000,000 award was set aside.
Since malice was not proved, the C.P.C. Industrial Products v Angima exception did not apply. In the face of express statutory provisions, the trial court erred in invoking common law principles to award general damages. The respondent, earning Kshs. 55,000 monthly, was entitled only to notice pay of three months' salary under section 16.
Discriminatory treatment
The court declined to disturb the trial court's finding that the respondent was treated differently from others similarly situated, given he was under 50 and the circular contemplated redeployment of such officers.
Although the respondent did not show other officers of similar age treated differently, he was initially sent on leave under a circular requiring redeployment of officers under 50, yet was retired in the public interest instead. On that basis the appellate court found no basis for interfering with the trial court's finding of differential treatment.
Legal principles established
#- Failure by a defendant to call a witness or defend a suit does not of itself mean the plaintiff has met the evidential burden; the trial court must still examine the evidence against the required standard of proof.
- An employer retiring an employee in the public interest must show objective, demonstrable and justifiable grounds amounting to public interest; a vague allusion to complaints is insufficient.
- A court will not base its decision on unpleaded issues, though it may validly determine an unpleaded issue where evidence on it emerges at trial.
- Under section 16 of the repealed Employment Act, 1976, damages for wrongful termination were limited to wages in lieu of notice; general damages were not payable in contract.
Court orders
#- 1.Finding of the trial court that the retirement in the public interest was unfair and unlawful termination of employment affirmed
- 2.Decision of the trial court awarding damages of Kshs. 6,000,000.00 set aside
- 3.Substituted an order for payment of damages of Kshs. 165,000, the equivalent of three months' salary under section 16 of the Employment Act, 1976, with interest from the date of the ELRC judgment until payment in full
- 4.Each party to bear its own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Employment and Labour Relations Court at Nairobi
- Nairobi ELRC Cause No. 762 of 2015
- Jurisdiction invoked
- First appellate jurisdiction over the Employment and Labour Relations Court (duty to evaluate evidence and reach own conclusion, per Selle v Associated Motor Boat Co Ltd)
Relief refused
#Appellant's request to set aside the entire judgment of the trial court and dismiss the suit
The finding that the retirement in the public interest was unfair and unlawful was upheld; only the damages award was disturbed
Respondent's prayer for dismissal of the appeal with costs
The appeal partly succeeded on the damages issue
Costs
As the appeal partially succeeds, we direct that each party bears its own costs of this appeal.
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.
It is our finding, therefore, that the appeal partly succeeds. We agree with the finding of the trial court that the retirement of the respondent in the public interest amounted to unfair and unlawful termination of employment, but that no malice or ulterior motive was established.
We therefore set aside the decision of the trial court awarding the respondent damages of Kshs. 6,000,000.00 and substitute therefor an order for payment of damages of Kshs. 165,000, the equivalent of three (3) months' salary in accordance with the said Act.
As the appeal partially succeeds, we direct that each party bears its own costs of this appeal.
The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of a rebuttal by the other side.
The vague allusion to 'complaints against you by Judges, Magistrates and other members of staff', without more, was insufficient to satisfy the onus on the appellant to justify the retirement of the respondent in the public interest.
Issues in the judgment
#Judgment text is garbled at the quotation from Kenya Ports Authority v Edward Otieno, with overlapping quoted text and stray numbering ('14. 60.'), making the exact extent of the quotation uncertain.
Numbering of issues restarts mid-list ('43. 31.'), an apparent typographical error in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Attorney General v Asitiba", Case Analysis (2026). Civil Appeal 666 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1759/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.