Attorney General v Asitiba

Secretary to the Treasury issued a circular requiring that all procurement ocers in the public service be sent on compulsory leave pending vetting for suitability for oce. Following the circular, other procurement ocers were called for interviews with a view to deployment, but he was not. 5. Instead, by a letter dated 17th June 2003, the respondent was informed that due to ‘numerous complaints’ about his performance and conduct, it had been decided that he should be retired in the public interest, and he was asked to show cause why that action should not be taken. In his response dated 23rd June 2003, the respondent, while denying any wrongdoing, pleaded for a second chance. 6. In a letter dated 9th August 2003, the Judicial Service Commission informed the respondent that a decision had been made to retire him in the public interest. The respondent then led Civil Suit No. 87 of 2004 in the High Court in which he challenged the decision to retire him in the public interest. In his statement of claim dated 29th July 2004, he alleged that his retirement was malicious and resulted from bad blood between him and the Chairman of the Judicial Service Commission (JSC). He sought emoluments as set out in his plaint, interest thereon from the date due monthly till payment in full; general damages and interest thereon; reinstatement to employment; and the costs of the suit. 7. The appellant led a defence dated 25th November 2004 denying the respondent’s claim. It admitted that he had been employed by the Judiciary, that he had been sent on compulsory leave, and that he had been retired in the public interest. It denied, however, that his termination was malicious, vindictive or as a result of a personal vendetta by the Chairman of the JSC. 8. The suit was later transferred to the Employment and Labour Relations Court as Cause No. 762 of 2015. After a full trial in which the respondent testied while the appellant did not call any witness, the court (Nduma, J. (as he then was)), entered judgment for the respondent as stated above. 9. At the hearing of the appeal, learned counsel, Ms. Wamuyu, appeared for the appellant. There was no appearance for the respondent though served, but both parties had led submissions. 10. In the submissions dated 1st February 2024, the appellant submits that the trial court erred in drawing an adverse inference against it for not calling a witness. It contends that this was an error as there were numerous complaints against the respondent, and his plaint shows that he was not a trustworthy employee. 11. The appellant impugns the nding of the trial court that as it chose not to adduce any evidence to contradict or rebut the oral evidence of the respondent, the respondent had proved his claim, on a balance of probabilities, that his employment was wrongly and unfairly terminated. The appellant submits that even though it did not call any witness, that did not mean that the claim was automatically allowed. It submits that the trial court was carried away by the evidence of promotions and commendations of the respondent and chose not to interrogate the evidence impartially. 12. According to the appellant, the respondent had very many disciplinary cases facing him, evidence with respect to which had been produced before the trial court but was ignored. It submits that the respondent admitted in cross examination that he was issued with a letter dated 17th June 2003 in which he was notied of the intention to retire him in the public interest; that the letter cited the basis of the respondent’s retirement in the public interest, inter alia, numerous complaints against the respondent by judges, magistrates and other members of sta; poor public relations and lack of courtesy to seniors and juniors; failure to discharge the functions of oce with diligence; and dealing with contractors who supplied sub-standard goods and services, giving rise to suspicion of corruption. 13. The appellant submits that in his response dated 23rd June 2003, the appellant admitted that due to the nature of his duties, he was also human and “bound to react to instances where I feel abused”. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1759/eng@2026-09-25 2

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The appellant further cited the respondent’s letter of 18th November 2004 in which he stated that he wished to “sincerely apologize to his Lordship, the Chief Justice and ask him to pardon me in the spirit of forgiveness….” and requested “to be given a second chance to serve the judiciary in any capacity you may nd me suitable.” 14. The appellant submits that the trial court was under a duty to conduct formal proof of proceedings and apply the law on the facts arising from the evidence before him, whether or not the suit was defended; that the respondent was also under a duty to prove his case to the required standard before he could obtain relief; that the trial court failed in its duty to apply the law to the facts emerging from the evidence placed before it; that the respondent did not adduce evidence that would lead to the shifting of the burden of proof to the appellant; and that the trial court ought to have dismissed the suit. 15. The appellant relies on, among others, the case of Gitobu Imanyara & 2 Others v Attorney General (2016) eKLR and Ignatius Makau Mutisya v Reuben Musyoki Muli [2015] eKLR for the proposition that even where the defendant has not denied the claim by ling a defence or an adavit, or even where the defendant did not appear, the trial court has a duty to examine the evidence to satisfy itself that indeed the claim has been proved; and if the evidence falls short of the required standard, the claim must be dismissed. It submits that it does not invariably follow that failure by a respondent to call a witness means that the claimant’s case must be allowed. 16. The appellant submits that the standard of proof in a civil case, which is on a balance of probabilities, does not change even in the absence of a rebuttal by the other side. It cites in support this Court’s decision in Ignatius Makau Mutisya v Reuben Musyoki Muli (supra) in which the Court cited the English case of Miller v. Minister of Pensions [1947]2 All ER 372 with respect to the burden of proof in civil cases. The appellant submits that the respondent did not discharge the legal and evidentiary burden placed on him to warrant the shifting of the burden of proof to the appellant; and that the trial court erred in drawing an adverse inference against it for not calling a witness when the respondent had not satised the initial burden placed on him. It is its submission that the trial court ignored the evidence of various (acts of) misconduct against the respondent, and its decision is unsupported both in law and evidence adduced. 17. The appellant has further impugned the decision of the trial court on the basis that it erred in, essentially, repealing the Employment Act 1976 with common law doctrines; basing its decision on the doctrine of legitimate expectation and common law while the said doctrines had not been pleaded; failing to appreciate that the respondent was bound by his pleadings and could not be granted reliefs not sought, and in awarding the respondent general damages of Kshs 6,000,000. 18. It submits that the trial court properly found that the provisions of the Employment Act, 2007, were not applicable to the respondent’s case; and that the law applicable to the case was the Employment Act 1976, now repealed. The appellant cites in support the case of Joseph Ileli Kikumbu v Central Bank of Kenya [2019] eKLR in which this Court held that since the cause of action in the matter arose before enactment of the Employment Act, 2007, the applicable law was the repealed Employment Act, Cap 226, which Act provided at section 16 that in case of termination without notice, an employer was required to pay wages or salary equivalent to the period of notice required to be given in the contract. 19. The appellant submits that the trial court having found that the applicable law was the repealed Employment Act, it erred in adopting the common law doctrine and the doctrine of legitimate expectation, which were not pleaded, no evidence was led with respect thereto, and no party led submissions in support or opposition thereto. The appellant submits that the trial court therefore repealed the Employment Act, 1976 with the doctrines of common law, thereby treating the respondent’s case, which was regulated by a statute, as a running down matter. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1759/eng@2026-09-25 3

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20. The appellant relies on the decision in Justice Kalpana H. Rawal v The Judicial Service Commission & 3 others (2016) eKLR for the proposition that a court will not determine a case or base its decision on unpleaded issues. It further relies on the decision of Maureen Onyango J. in Wilfred Samsom Mutua v Kenya Wildlife Services (2014) eKLR with respect to the applicable law prior to enactment of the 2007 Employment Act. 21. With regard to its challenge to the award of damages of Kshs. 6,000,000 and the assertion that the trial court made contradictory and diametrically conicting ndings that the respondent had suered joblessness for the entire period but that he was able bodied intellectually and, professionally well guided, ought to mitigate his loss by getting alternative employment, the appellant submits that the award was made without assigning any reason, and it was unclear whether the award was for the years worked or expected duration from termination until retirement. 22. The appellant submits that even were the Employment Act, 2007, the applicable law, the respondent, who testied that he was earning a monthly salary of Kshs 55,000, would have been entitled, at the very maximum, to Kshs. 55,000 per month for twelve months, amounting to Kshs. 660,000. The appellant submits that the amount awarded, at the appellant’s salary of Kshs. 55,000 per month, would translate to an award for a period of 109 months, the equivalent of 9 years; and there was no legal basis for awarding salary of 9 years when the applicable law permitted notice pay and nothing more. 23. The appellant cites the decision in United States International University v Eric Rading Outa [2016] eKLR to submit that the trial court fell into error for awarding the rrespondent the said amount without assigning any reasons, contrary to the applicable law. 24. With respect to the contention that the trial court erred in ignoring the submissions and points of law placed before it by the appellant, the appellant submits that it had submitted on the applicable law and had contended that the respondent would only have been entitled to notice pay and no more. The appellant cites in support the case of Ignatius Makau Mutisya v Reuben Musyoki Muli and Wilfred Samsom Mutua v Kenya Wildlife Services (supra) for the proposition that general damages could not be awarded to the respondent, but that nothing was said by the trial court about these cases. The appellant asks this court to allow its appeal and set aside the orders of the trial court. 25. The respondent led undated submissions opposing the appeal and praying that we dismiss it with costs. 26. With regard to the appellant’s argument that the trial court erred by drawing an adverse inference against it and thus shifting the legal burden of proof to it, the respondent references the allegations made against him in the letter dated 17th June 2003. He submits that before the trial court, he adduced documentary evidence in support of his case in accordance with sections 107, 108 and 109 of the Evidence Act; that he tendered evidence showing his diligence at work, numerous promotions, instances of malicious allegations by the then Chief Justice, and termination from employment without any valid ground. 27. He submits that it was then upon the appellant to adduce evidence in rebuttal, but that the appellant failed to do so. It is his submission that the appellant simply led the same documents that he had led and did not, whether through production of documentary or oral evidence, or during cross examination, adduce any evidence to controvert his claim. In his view, this meant that he proved his case on a balance of probability as none of the reasons cited in the letter of termination were proved to be valid. The respondent cites the case of Mbogua Kiruga v Mugecha Kiruga & another {1988} eKLR and Citizens Against Violence {CAVI} & 14 others v Attorney General & 3 others {2020} eKLR with https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1759/eng@2026-09-25 4

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respect to the legal and evidentiary burden of proof and on whom and how it is met to submit that he discharged the burden of proof that lay on him. 28. Regarding the appellant’s contention that the trial court erred in law by introducing its own arguments on the doctrine of legitimate expectations that he had not pleaded, and which was not argued by either party, and proceeding to base the judgment on it, the respondent argues that the trial court rightfully held that the Employment Act 2007 was not applicable in his case as the cause of action arose before it was enacted. He submits that the trial court properly held that in the circumstances, he was entitled to equitable remedies under the common law applicable to breach of contract of employment leading to loss and damage. His submission is that he had pleaded that he be awarded the equivalent of lost income to retirement; and that a court must apply its mind in making a just determination and is not only bound by the legal arguments before it. 29. The respondent submits that it was incorrect to argue that he had not pleaded legitimate expectations, citing the averment in the plaint in which he prayed for payment to him of all emoluments that he would have been entitled to had his employment not been wrongfully and prematurely terminated, up to and including at the mandatory retirement age of 55 years. 30. The respondent submits that he had the legitimate expectation that the terms and conditions of his contract would be honoured to the end; and that the court found that the contract was unlawfully and unfairly terminated. According to the respondent, due to the inapplicability of the Employment Act, 2007, the trial court properly applied the doctrine of legitimate expectation and awarded damages for malicious termination of employment. He cites in support the case of C.P.C. Industrial Products v Angima Civil Appeal No. 197 of 1992 {UR}. 31. The respondent dismisses the appellant’s contention that the trial court had erred in law in purporting to exercise legislative powers by essentially repealing the Employment Act, 1976, and in applying the common law to the respondent’s case. The respondent submits that the trial court correctly held that the Employment Act, 2007, was not applicable in his case. He submits, however, that the trial court did not at any time purport to repeal the Employment Act, 1976, which was repealed by section 92 of the Employment Act, 2007. 32. The respondent distinguishes the case of Joseph Ileli Kikumbu v Central Bank of Kenya (supra) relied on by the appellant, submitting that in that case, the trial court had applied the provisions of the Employment Act, 2007 retrospectively, which is not the case in the present matter. He submits that he had particularised his loss and damage, which the trial court considered in arriving at its decision. Further, that the trial court correctly applied the Employment Act 1976 and, considering the obtaining circumstances in this case where his employment was maliciously terminated, applied the equitable remedies under common law. He submits that in a number of decisions, this court has upheld the award of damages in similar circumstances where an employee is maliciously terminated from employment. The respondent submits that he was able to show, through evidence, glaring issues of malice and ulterior motive which prompted the trial court to award damages, again citing in support C.P.C. Industrial Products v Angima (supra). 33. Regarding the appellant’s complaint that the trial court awarded him damages of Kshs. 6,000,000 without giving any justication, the respondent submits that the trial court clearly gave the reasons for arriving at the award. He contends that the circumstances leading to the termination of his employment included the bad blood between him and the then Chief Justice; that he did raise in his plaint issues of malicious termination of his employment and adduced evidence to support his claim, which evidence was uncontroverted. The respondent cites the case of Kenfreight {E.A.} Limited v Benson K.Nguti {2016} eKLR with respect to the circumstances in which general damages could be https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1759/eng@2026-09-25 5

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awarded under the Employment Act, 1976, and C.P.C. Industrial Products v Angima (supra) for the proposition that damages will only be limited to the period of notice agreed between the parties if, in exercising its right to terminate employment, the employer was not actuated by ulterior motives, or did not act in bad faith; and that if the employer acted maliciously, oppressively or callously, the court was bound to consider that fact in assessing the damages the employee would be entitled to for wrongful termination. 34. With respect to the appellant’s contention that the trial court erred in nding that the respondent had been victimised and treated dierently without making reference to any positive evidence on the issue from either party, the respondent submits that he adduced documentary and oral evidence in court, which was not controverted, clearly showing that he was victimized and consequently treated dierently. The respondent submits that he was victimised based on the evidence adduced showing that the then Chief Justice was not happy with the way he handled the repair of an ocial car and the ocial house; that other than these instances, there was no evidence produced by the appellant to show that he had disciplinary issues at work, or that there were valid reasons for terminating his employment. 35. Regarding the contention that the trial court erred in nding that the termination of his employment was unlawful and unfair, the respondent submits that he had adduced evidence, which was not rebutted, in proof of his case. He submits that having done so, the appellant had the onus to show objective and demonstratable grounds for his retirement in the public interest, citing in support, inter alia, Marete v Teachers Service Commission (Cause 379 [N] of 2009) [2013] KEELRC 575 (KLR) (28 June 2013) (Award). It was his submission that the appellant had not proved that the reason for termination was valid and that fair procedure was followed. 36. To the complaint that the trial court erred when it failed to consider the responses by the respondent to the various show cause letters issued to him, the respondent submits that the appellant led a statement of defence and written submissions before the trial court; that it made general denials in its defence without adducing any evidence to support its case; that it did not, during the hearing of the case, adduce any evidence to controvert his claim; and that the trial court clearly considered the evidence and responses by the respondent in arriving at its determination. 37. The respondent dismisses the appellant’s contention that the trial court erred in making contradictory and diametrically conicting ndings that the respondent has suered joblessness for the entire period, and on the other hand, that the respondent, who is able bodied intellectually and professionally, ought to mitigate his loss by getting alternative employment. He submits that the trial court considered the fact that the respondent had suered joblessness for the entire period and that he had not mitigated that loss by getting alternative employment in awarding damages of Kshs. 6,000,000. In his view, this implies that he may have been entitled to damages over and above Kshs. 6,000,000 if he was not able bodied intellectually and professionally by virtue of his former employment with the Judiciary. 38. To the appellant’s contention that the trial court erred in law in failing to appreciate its submissions and points of law and making a nding in its favour, the respondent submits that a nding of a court of law is based on the pleadings by the parties before it. He contends that the appellant admits that he was retired in the public interest in accordance with regulation 28(2) of the Judicial Service Commission Regulation; and that the regulation requires that the Chief Justice lays a report on the case before the Commission, the ocer’s reply and recommendations. The respondent submits that the appellant did not tender any evidence to show whether regulation 28{2} was complied with. 39. The respondent maintains that he was a diligent employee; that there were personal issues between him and the then Chief Justice, especially in regard to the repair of a car used by the then Chief Justice’s son and installation of a swimming pool at the then Chief Justice’s home which led to audit https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1759/eng@2026-09-25 6

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queries; and he was subsequently retired by the then Chief Justice purportedly in public interest based on unsubstantiated and malicious allegations. The respondent submits that the appellant did not controvert the aforesaid claims, and it cannot therefore be heard to argue that the trial court failed to consider its submissions and authorities. The respondent urges this Court to dismiss the appeal with costs to him. 40. We have considered the record of appeal, the judgment of the trial court, and the submissions of the parties. We note that certain matters arising from the record are not in dispute. The rst relates to the employment of the respondent and the termination thereof. It is undisputed that the respondent was an employee of the Judiciary, having been seconded thereto from the Ministry of Finance. He was working as Chief Supplies Ocer when he was sent on leave pursuant to a circular issued by the Permanent Secretary, Treasury, dated 27th May 2003. Thereafter, he was sent a letter dated 17th June 2003 to show cause why he should not be retired in the public interest. He responded by a letter dated 23rd June 2003. He was retired in the public interest by a letter dated 9th August 2003. He was 42 years old at the time of the retirement. 41. Arising from the above matters, the second undisputed fact is that the law applicable to his employment was the Employment Act, 1976, Cap 226 of the Laws of Kenya, which was in force prior to the enactment of the Employment Act, 2007. 42. The issues that then arise for determination that we glean from the grounds of appeal and the submissions of the parties are: 43. 31. i. 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; ii. whether the trial court erred in nding that the termination of the respondent’s employment was malicious, actuated by ulterior motive, discriminatory unfair and unlawful; and iii. 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. We will address ourselves to the rst two issues together. The appellant has argued that the trial court erred in nding that the evidence of the respondent was uncontroverted, in drawing an adverse inference against it; and in nding that the termination of the respondent’s employment was malicious, discriminatory and unfair. In reaching its decision, the trial court observed: “ 29. As observed earlier, the Claimant testied under oath and presented his good record at work leading to various promotions and appointment of position, of responsibility up to the date they were suddenly sent on compulsory leave by the Treasury. 30. The Respondent chose not to adduce any evidence to contradict and/or rebut the oral evidence by the Claimant well supported by documentary evidence produced before court. In terms of Sections 107, 108 and 109 of the evidence Act, the Claimant has the initial onus of adducing sucient evidence in support of his case. Once that is done, the onus shifts to the respondent to adduce evidence in rebuttal of the evidence adduced by the Claimant. Failure to rebut relevant and credible evidence adduced by the Claimant has led the court to the inevitable conclusion that the Claimant has proved on a balance of probabilities that his employment was wrongly and unfair terminated.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1759/eng@2026-09-25 7

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44. The parties have submitted at some length with respect to the burden of proof in civil cases. Under section 107 of the Evidence Act, Cap 80 Laws of Kenya: “ Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 45. The respondent’s testimony as it appears in the record was that he had a good record and was commended by, among others, the then Registrar of the Judiciary and a judge of the High Court; he had been given additional responsibilities at work; he was 42 years old and was expecting to be called for redeployment in accordance with the circular from the PS, Treasury. He attributed the termination of his employment to malice and bad blood between himself and the then Chief Justice, citing an incident in 1994 involving the Chief Justice’s house, another involving air tickets in 1998, and a third relating to a vehicle driven by the Chief Justice’s son. 46. Weighed against these incidents set out in his plaint and that emerged from his oral testimony is his witness statement dated 8th April 2016 which does not mention the allegations against the Chief Justice, and his letter dated 23rd June 2003 and 18th November 2004 in which he apologises to the Chief Justice, explains his interactions with colleagues and the shortcomings in procurement, and pleads for a second chance. We note that the respondent alleges that he wrote the letter of 23rd June 2003 under duress, but he did not explain the nature of the duress, save to say that he was called by the then Registrar of the Judiciary. The length and detail in the letter, as well as the contents of the letter of 18th November 2004, however, cast some doubt on the allegation that he wrote it under some form of compulsion by his superiors. 47. It is correct, as the trial court found, that the appellant did not call any evidence. It is also correct, as submitted by the appellant, that failure by a defendant to call a witness, or even to defend the suit, does not, of itself, contrary to the trial court’s nding, mean that the plainti has met the evidential burden placed on him. As this Court held in Imanyara & 2 others v Attorney General (Civil Appeal 98 of 2014) [2016] KECA 557 (KLR) (19 May 2016) (Judgment): “ It is a rmly settled procedure that even where a defendant has not denied the claim by ling of defence or an adavit or even where the defendant did not appear, formal proof proceedings are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed. 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. see Mwangi Muriithi (supra) and Mumbi M'Nabea v. David Wachira Civil Appeal No. 299 of 2012.” 48. In this case, we are not satised that the particulars of malice alleged by the respondent were proved as required under section 107 of the Evidence Act. Other than the respondent’s testimony with respect to events that allegedly transpired nine and ve years prior to the retirement of the respondent, there was no evidence before the trial court to support the allegations of malice by the Chief Justice. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1759/eng@2026-09-25 8

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49. That, however, is not the end of the matter. The respondent was purportedly retired in the public interest under regulation 28 of the Judicial Service Commission Regulations which were then in force. 50. We have noted the holding of the then Industrial Court in Marete v Teachers Service Commission (supra) in which Rika J. held: “ 19. The Respondent had the onus to show objective and demonstrable grounds warranting the retirement of Marete. When a public employer justies the premature termination of a contract of employment, on the grounds of public interest, such an employer must show its decision is driven by public policy objective, and that the decision taken is legitimate and justiable. It is not enough to merely write a letter to the employee and inform him that a decision to retire him on public interest has been made. There must be shown valid reasons amounting to public interest, to justify termination. The employer would be expected to show adherence to fair termination procedure, before arriving at the decision. If the allegation against the employee is on nonperformance, the employer must at the outset advise, counsel, and assist the public servant to mend his ways. In case there is no change, the employer should call for special appraisal. At the end of these procedural steps, the employer would have material with which to confront the employee, and justify retirement on public interest. If public employers are allowed to merely invoke public interest in retiring employees, without giving elaboration of the circumstances giving rise to the infringement of public interest, the employment protections given under the Employment Act 2007 would be meaningless to public servants.” 51. We appreciate that in the above case, the Industrial Court was dealing with a matter that arose when the Employment Act, 2007 was in force. However, the principle with respect to the duty of an employer purporting to retire an employee in the public interest is well articulated and applicable even in the circumstances of this case that predates the Employment Act, 2007. 52. The respondent in this case was informed, in the letter dated 17th June 2003, that: “ Following numerous complaints against you by Judges, Magistrates and other members of sta with regard to your performance of duly, the Hon. the Chief Justice is of the opinion that it is desirable in the public interest that your service in the Judiciary be terminated.” 53. There was nothing placed before the trial court to show that the Judiciary, represented by the appellant, had a basis for seeking to terminate the employment of the respondent in the public interest. The vague allusion to ‘complaints against you by Judges, Magistrates and other members of sta’, without more, was insucient to satisfy the onus on the appellant to justify the retirement of the respondent in the public interest. We agree with the nding of the trial court that the retirement was therefore unfair and unlawful. 54. The respondent also argued that his retirement was discriminatory. The basis of this contention, as we understand it, is that under the circular from the Permanent Secretary, Treasury, all procurement ocers over the age of 50 years were to proceed on compulsory retirement in accordance with regulation 18 of the Service Commissions Act Cap 185 Laws of Kenya. Those below 50 years of age were to proceed on leave and would be required to complete applications with a view to redeployment. The respondent was aged 42 at the time of his retirement. He has not shown that there were others, of https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1759/eng@2026-09-25 9

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a similar age, who were treated dierently by the appellant and were redeployed. However, we take the view that given that the respondent was initially sent on leave pursuant to the circular by the Permanent Secretary, Treasury, which required redeployment of ocers under the age of 50, we have no basis for interfering with the trial court’s nding that the respondent was treated dierently from others similarly situated when a decision was made to retire him in the public interest. 55. The nal issue for our consideration is 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. Having found that the termination of the respondent’s employment was unfair, what was the proper basis for assessing damages for the unfair termination? 56. We deal rst with the contention by the appellant that the trial court invoked the doctrine of legitimate expectation which had not been pleaded or argued before it. We have set out above the pleadings by the respondent, and the appellant’s defence. Contrary to the respondent’s submissions, nowhere does he raise the issue of legitimate expectation, and it appears to have been raised and addressed by the trial court suo motu. 57. In its decision in Justice Kalpana H. Rawal v The Judicial Service Commission & 3 others (supra) the Supreme Court held as follows: 60. The principles of law on unpleaded issues, as stated by the appellant, are correct and not in dispute. A court will not determine or base its decision on unpleaded issues. Where however, evidence is led and it appears from the cause followed at trial that an unpleaded issue has been left to the court to decide, the trial court can validly determine the unpleaded issue.” (Emphasis added) 58. We agree with the appellant, therefore, that the trial court erred in invoking the doctrine of legitimate expectation in reaching its decision. 59. What, then, was the proper basis for determining the respondent’s claim? As we noted earlier, the law in force at the time of termination of the respondent’s employment was the Employment Act, 1976. Under section 16 of that Act, damages for wrongful termination of a contract of employment were limited to the wages that would have been payable in lieu of notice, and nothing more. The jurisprudence of our courts with respect to termination upheld that position. In Kenya Ports Authority v Edward Otieno [1997] KECA 388 (KLR), this Court stated as follows: “The other ground of appeal is whether Mr. Otieno was, in law, entitled to be awarded by way of damages for the loss of salary, medical allowance, housing allowance, leave allowance, mileage claim, telephone judgment, where, as in the instant case, a contract of service includes a period of termination of the employment, the damages suered are the wages for the period during which his normal notice would have been correct. In the case of Rift Valley Textiles Limited v Edward Onyango Oganda Civil Appeal No 27 of 1992 (unreported) the contract of service provided that it could be terminated by a three months’ notice by either party. The judge awarded the respondent twelve months’ gross salary as general damages in addition to the three months’ salary in lieu of notice already paid. This Court stated as follows: “ We have no doubt whatsoever that the law did not entitle the judge to do any of these things. The contract of employment between the appellant and the UOTE https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1759/eng@2026-09-25 10

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respondent specically provided for a notice period and it also provided for what was to be done if either party was unable to comply with the said notice period, namely, to pay the other party for the notice period. In our view, even though the respondent’s dismissal was unlawful, he had been paid all that he was entitled to be paid under and in accordance with the terms of his contract with the appellant.” 14. 60. We respectfully agree. We nd that Mr Otieno was not entitled in law to any of the benets and/or emoluments claimed as above set out. As a retiree he would not be entitled to any such claims apart from his normal monthly retirement benets.” In Unilever Tea Kenya Limited v John Kememia Gitau [2017] KECA 55 (KLR), this Court set aside an award of damages made in favour of the respondent in a dispute arising under the repealed Employment Act 1976. The Court held as follows: “ As stated above, the parties admitted that the applicable law was the Employment Act Cap 226 of the Laws of Kenya. The court agreed with the appellant and the respondent as to the applicable law. It is also not in dispute that the respondent was terminated by the appellant on 23rd February, 2007. The Employment Act, 2007 came into force on 2nd July, 2007. It is therefore; abundantly clear that at the time of termination the applicable law was the Employment Act, Chapter 226 of the Laws of Kenya. S.16 thereof provided as follows: “Either of the parties to a contract of service... may terminate the contract without notice upon payment to the other party of the wages or salary which would have been earned by that other party, or paid by him as the case may be, in respect of the period of notice required to be given under the corresponding provision or the subsection.” 61. The Court in Unilever went on to state as follows: “ The provisions of S.16 of the Employment Act, Chapter 266 of the Laws of Kenya were amplied in the case of Directline Assurance Co. Ltd Vs Jeremiah Wachira Ichaura (supra) where this court considered the issue of whether general damages are payable in a contract of Employment, such as the contract between the appellant and the respondent. This is what the court said“We now turn to consider whether the respondent was lawfully entitled to an award of damages in the sum of Ksh.4,200,000/- as general damages. Both parties concede that the applicable law to the dispute was Cap 226. The general rule then was that the court could not award general damages for breach of contract and or employment terms.” See also Securicor Courier (K) Ltd v Benson David Onyango & Ann, Civil Appeal No. 323 of 2002 (ur) and Joseph Ileli Kikumbi v Central Bank of Kenya (supra). 62. The respondent has relied on the decision in C.P.C. Industrial Products (K) Ltd v. Angima (supra) for the holding that where an employment was terminated in a manner that was particularly harsh, vindictive or malicious, then the court could, even under the pre-2007 legal regime, award damages beyond the notice period. However, having found, as we did earlier in this judgment, that the allegations of malice and ulterior motive were not proved, we are not satised that the trial court had a basis for awarding damages of Kshs. 6,000,000 to the respondent. Indeed, in the face of express statutory provisions under the Employment Act then in force, the trial court was in error in invoking common law principles to award the said damages. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1759/eng@2026-09-25 11

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63. It is our nding, therefore, that the appeal partly succeeds. We agree with the nding 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. He was therefore entitled to damages as provided under section 16 of the Employment Act, 1976. 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. This amount shall bear interest from the date of the judgment in the ELRC until payment in full. 64. As the appeal partially succeeds, we direct that each party bears its own costs of this appeal. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER, 2026 S. GATEMBU KAIRU, FCIArb, CArb. ………………………….…………………… JUDGE OF APPEAL MUMBI NGUGI ……………………………….. JUDGE OF APPEAL P. NYAMWEYA …………………………………….. JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1759/eng@2026-09-25 12

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