Mereka v Muthee (Civil Appeal 213 of 2019) [2024] KECA 1961 (KLR) (20 December 2024) (Judgment)
Neutral citation:
[2024] KECA 1961 (KLR)
Republic of Kenya
Civil Appeal 213 of 2019
DK Musinga, SG Kairu & JM Mativo, JJA
December 20, 2024
Between
David Mukii Mereka
Appellant
and
Mukami Muthee
Respondent
(Being an appeal from the judgment of the High Court of Kenya at Nairobi (Sergon, J.) delivered on 13{{^th}} November 2015 in Civil Appeal No. 711 of 2003
Civil Appeal 711 of 2003
)
Judgment
1.This is an appeal from the judgment of the High Court of Kenya at Nairobi (Sergon, J.) delivered on 13th November 2015.
2.A brief background is necessary in order to put this appeal in context. The respondent, an Advocate of the High Court of Kenya, was employed by the appellant, who runs a law firm under the name and style of Mereka & Co. Advocates. An appointment letter dated 5th December 1996 was issued to her. She was also issued with a separate document titled ‘General Terms and Conditions of Employment’.
3.On 20th September 1999, the respondent gave the appellant a resignation notice of 3 months as per the terms of her appointment letter. Her resignation was to take effect on 20th December 1999 after the lapse of the 3 months’ notice period. However, on 16th November 1999 while she was still serving her notice period, the appellant purported to summarily dismiss her from employment. At the time of the summary dismissal, she was earning a gross monthly salary of Ksh.72,500.
4.She contended in her suit before the Magistrates’ Court at Nairobi, to wit, Civil Suit No. 5817 of 2002, that her dismissal was done without following the laid down procedures; was without any lawful cause; was actuated by malice; and that she was not afforded an opportunity to be heard. Her prayers were for pro rata salary of 16 days worked in November 1999, which she quantified at Ksh.38,667; 1 month’s salary for the unspent notice period at Ksh.72,500, as well as interest on these amounts and costs.
5.The appellant in a Defence dated 22nd August 2002 denied the allegations of wrongful termination of the respondent’s employment. The gist of his response was that the respondent was in the process of converting and/or stealing the property of the appellant in the form of an updated Local Government Act for her own use, and that she was therefore guilty of pilferage and in the circumstances, the appellant was under no obligation to abide by her 3 months’ notice. The appellant further contended that summary dismissal fell under paragraph 9 of the terms and conditions of the respondent’s employment.
6.At the hearing before the trial court, the respondent testified as PW1. She acknowledged putting a copy of the Local Government Act in an envelope which she left with a receptionist at the appellant’s firm. Her friend known as Julia Kariuki, an Advocate of the High Court of Kenya, was to collect the said envelope containing the copy of the Local Government Act which she was to use and return to the respondent. She further testified that it was a normal practice between her and Julia Kariuki to lend each other resource materials which they would return after use. Julia Kariuki testified as PW2 and confirmed that she had requested the respondent to assist her with a copy of the Local Government Act, which she was to use and return to her.
7.On his part, the appellant who testified as DW1, reiterated that the respondent was summarily dismissed on grounds of theft;that he was unaware of the alleged practice of exchange of his library material by the respondent and third parties; and that the respondent’s dismissal was justified.
8.In a judgment dated 7th October 2003, the trial court held that PW2 and the respondent had established that it was a normal practice to exchange legal documents between themselves. In any case, the court could not rationalize why the respondent could be said to have stolen or wanted to steal a copy of the Local Government Act whereas there were books of more value than the said Act. According to the court, if the appellant truly believed the respondent to be a thief, he ought to have made a report to the police, which he did not. The court further held that the respondent was not afforded an opportunity to explain the intent behind giving the Local Government Act to her friend. This was a breach of rules of natural justice. In the end, the respondent was awarded Ksh.72,500 being one month’s salary in lieu of notice, and Ksh.38,600 being 16 days’ salary she had worked in the month of November 1999, bringing the total to Ksh.111,100. The total award was subject to PAYE.
9.Dissatisfied with the decision of the trial court, the appellant preferred an appeal to the High Court, to wit, Civil Appeal No. 711 of 2003. He faulted the trial magistrate for, inter alia, holding that the respondent’s summary dismissal from employment was unlawful, contrary to the evidence on record; failing to consider the submissions on behalf of the appellant regarding the inapplicability of rules of natural justice; and awarding the respondent Ksh.72,5000 salary in lieu of notice whereas evidence on record showed that she earned less.
10.After the hearing, which proceeded by way of written submissions, vide a judgment dated 13th November 2015, the High Court agreed with the decision of the trial court in its entirety. The court held that the allegation of theft required the appellant to hear the respondent, and that mere suspicion could not sustain the action taken by the appellant. As regards the respondent’s salary, it was held that there was evidence on record showing that at the time of her summary dismissal she was earning a gross monthly salary of Ksh.72,500 and, therefore, the amount awarded by the trial court was not only pleaded but also proved by way of documentary evidence. The appeal was therefore dismissed with costs.
11.On his second appeal to this Court, the appellant contends that the learned judge erred in law and in fact by, inter alia: holding that the respondent’s summary dismissal from employment was unlawful contrary to the evidence on record which overwhelmingly confirmed the existence of sufficient and reasonable grounds to justify such an action; failing to consider submissions by the appellant as to the inapplicability of the rules of natural justice in the circumstances of the matter before court; upholding the trial court’s finding on the respondent’s salary despite evidence showing she was earning less; erroneously awarding the respondent pro rata salary for 16 days purportedly worked in November 1999 despite binding authority presented in court showing that the salary for this period was not legally recoverable; and failing to hold that the trial magistrate stepped into the arena of litigation by unilaterally and erroneously introducing considerations as to PAYE in the absence of any evidence by either party to support the same.
12.When this appeal came up for hearing, learned counsel Ms. Njoroge held brief for Mr. Mereka for the appellant. There was no appearance on behalf of the respondent despite service of a hearing notice upon her. The respondent had also not filed any written submissions. Learned counsel indicated that her client would be relying entirely on his written submissions without any oral highlights.
13.Through his written submissions, the appellant contends that the learned judge did not re-evaluate the case that was before the trial court, and specifically that he did not take into account the appellant’s sworn statement to the effect that the appellant was not aware of any arrangement of exchange of library books or other documents with third parties, and further that there was a verbal prohibition of issuance of books out of the library without the appellant’s authority.
14.It was further submitted that the appellant had reasonable suspicion that a copy of the Local Government Act was in the process of being pilfered or stolen by the respondent. He relied on the decision of Timothy Isaac Bryant & 2 Others v Inspector General of Police & 7 Others [2014] eKLR, where the Court held that as per the Black’s Law Dictionary 9th Edition, reasonable suspicion is a particularized or objective basis, supported by specific and articulable facts, for suspecting a person of criminal activity. In this connection, it was the appellant’s submission that he reasonably believed that the copy of the Local Government Act was not to be returned and therefore the respondent was in the process of converting it, or had already converted the said property.
15.The appellant further contended that the learned judge erred in law in holding that the respondent’s summary dismissal was unlawful contrary to the evidence on record which overwhelmingly showed the existence of sufficient and reasonable grounds to justify her summary dismissal. As regards the question whether the respondent should have been granted an opportunity to be heard before her summarily dismissal, it was submitted that fair hearing is not required in a case of summary dismissal. Reliance was placed on the decision of this Court in CA No. 27 of 1992,Rift Valley Textiles Limited v Edward Onyango Oganda [1994] eKLR, for the proposition that rules of natural justice are irrelevant and cannot find a cause of action unless there be a specific provision for their application to a simple contract. The appellant contended that he was not required to give reasons to the respondent before summarily dismissing her from employment but that he did, in any event, give reasons through his letter dated 16th November 1999 which the respondent replied to. According to the appellant, the correspondence exchanged between the parties amounted to fair hearing. In any case, the issue of fair hearing was not pleaded by the respondent.
16.Lastly, regarding the learned judge’s finding on the respondent’s monthly salary, it was contended that none of the parties assisted the trial court in determining her monthly salary and therefore the trial court was wrong in arriving at the conclusion that her gross monthly salary was Ksh.72,500 without any evidence. Since the respondent was not able to prove her gross monthly salary, the claim of Ksh.38,667 for the 16 days she worked in November 1999 should not have been allowed. The learned judge was faulted for not only holding that these two claims were pleaded and proved before the trial court, but also for upholding the said awards.
17.This being a second appeal, this Court has to confine itself to matters of law only, unless it is shown that the courts below considered matters they should not have considered, or failed to consider matters they should have considered, or looking at the entire decision, it is perverse. See Maina v Mugiria [1983] KLR 78, Kenya Breweries Ltd v Godfrey Odongo, Civil Appeal No. 127 of 2007, and Stanley N. Muriithi & Another v Bernard Munene Ithiga [2016] eKLR.
18.We have considered the record of appeal, the grounds of appeal and the submissions on record. The twin issues that we deem fit for our determination in this appeal are whether there were sufficient grounds to summarily dismiss the respondent from employment, and whether it was necessary to grant her an opportunity to be heard.
19.The respondent was summarily dismissed from employment on the grounds that she wanted to and/or was in the process of stealing a copy of the Local Government Act belonging to the appellant. According to the appellant, the respondent’s actions warranted summary dismissal in line with paragraph 9 of her appointment letter, which provided the General Terms and Conditions of Employment. The said terms and conditions contained clauses on summary dismissal. The clause relied upon by the appellant was the one providing for summary dismissal if an employee commits, or on reasonable and sufficient grounds is suspected of having committed any criminal offence against or to the substantial detriment of his employer or his employer's property. This mirrored the provisions of section 17(g) of the Employment Act, Cap 226 which was repealed by the Employment Act, No. 1 of 2007.
20.In dismissing her from employment, the appellant contended that he acted on reasonable suspicion that the respondent never intended to return the Act to the firm. Was there reasonable suspicion that the respondent intended to steal a copy of the said Local Government Act? We do not think so. The appellant contended that she was just assisting a friend and a colleague advocate identified as Julia Kariuki with the said copy, which she was to use and return to her. The copy of the Local Government Act was put in an envelope and left at the front desk of the appellant’s office with a secretary. The said friend corroborated the testimony of the respondent during trial and averred that she was to return it after use. The suspicion and conclusion of the intended theft does not align with the evidence presented in court. The envelope containing a copy of the said Act was left in plain eye sight. This coupled with testimonies of both the appellant and her friend that the Act was to be returned after use does not, in our view, support the appellant’s apprehension or suspicion of theft of the firm’s property. Therefore, the appellant in dismissing the respondent from employment did not have reasonable suspicion that a copy of the Local Government Act was being taking away with the intent of depriving the firm of it. We associate ourselves with the views expressed by the learned judge that the appellant acted purely on mere suspicion which is not sufficient to justify summary dismissal.
21.As regards the issue whether the respondent should have been given an opportunity to be heard, we associate ourselves with the finding of the learned judge that the allegations against the respondent were serious in nature, and it was therefore necessary for the appellant to hear the respondent. This Court in Cooperative Bank of Kenya Limited vs Yator (Civil Appeal 87 of 2018) [2021] KECA 95 (KLR) (22 October 2021) (Judgment) held that even under the repealed legislation, it was a necessary prerequisite to give an employee a fair hearing before termination. In the same decision, this Court held:
22.The respondent was not given fair hearing before her summary dismissal from employment. Therefore, her dismissal was unfair, unprocedural and illegal. We find no basis for interfering with the learned judge’s decision on this issue.
23.The upshot is that this appeal is devoid of any merit and we accordingly dismiss. We make no orders as to costs as the respondent did not appear to defend the appeal.
DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF DECEMBER 2024.D. K. MUSINGA, (P.)........................................JUDGE OF APPEALS. GATEMBU KAIRU, FCIArb.........................................JUDGE OF APPEALJ. MATIVO........................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.