[1996] KEHC 22 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Civil Case 1299 of 1990

APOLLO RICHARD OLUOCH......................................PLAINTIFF

versus

KENYA NATIONAL LIBRARY SERVICES ............. DEFENDANT

JUDGMENT

By this suit filed on 5th March, 1990, the plaintiff Mr.Apollo Richard Oluoch claims from the defendant, Kenya NationalLibrary Services special and general damages for what he claimsto be wrongful and unlawful termination of his services by thedefendant. The defendant however denies liability to theplaintiff and contends that the plaintiffs services werelawfully summarily terminated for gross misconduct by theplaintiff.

As can be seen from the pleadings and the evidence onrecord, the defendant is a statutory corporation charged withthe running of libraries in this country. The plaintiff joinedthe service thereof over 28 years ago in May, 1967. Afterabout 10 years during which I presume he must have served thedefendant well, the plaintiff was appointed the Chief Librarianand Chief Executive of the defendant by a letter dated 7thOctober, 1977 by the defendant's Board. The letter ofappointment was under the hand of the then Chairman of thedefendant's Board.

After about 10 years service as the Chief Executive ofthe defendant, some differences appear to have arisen betweenthe parties herein which led to the defendant's Board torequest its auditors, Messrs. Cooper and Lybrad by a letterdated 16th September, 1987 to carry out the financial audit of its services. After the defendant had received an initialreport dated 14th October, 1987 indicating some malpractices inordering of books and payments for same, the defendantrequested the said auditors to carry out further investigationsand in the meanwhile by a letter dated 12th October, 1987interdicted the plaintiff from his duties during which periodhe only received half of his salary. This interdiction wasfollowed by a letter dated 31st May, 198S terminating theplaintiff's services with the Board under the hand of the Chairman of the Board. The letter stated that adverse auditreports had been received and which had led to loss ofconfidence in the plaintiff by the defendant's Board.Apparently due to some confusion as to who was entitled toterminate the services of the plaintiff, a further letter 'oftermination of services was sent to the plaintiff by the Ag.Director of the defendant dated. 27th January, 1989 stating thatthe Board had on 26th January. 1989 summarily terminated the plaintiff’s services as from l2th.October, 1987, with loss ofall benefits. According to the plaintiff, he had never been asked to defend himself either in either in the course of investigations or before the termination or his services was reached by the defendant’s Board.he also stated that some criminal proceedings were later instituted against him and others for alleged conspiracy, but were later dismissed.

According to the plaintiff, when he was interdicted he found it hard on him.. He was humiliated and suffered mentalagony, financial embarrassment ,family inconvenience and lossof personal and professional credibility before hiscolleagues. He also stated that that he was then 52 years and couldhave worked up to 55 years of age. As a result of thetermination, he had only been paid. his part of the pension andlost Shs. 136,356/50 which he would have been paid if had

Retired normally. He also said that he had been paid half of his salary up to April, 1988. he denied having committed anyirregularities during his long service with the defendant nor

Was he responsible for making payment for goods delivered tothe defendant nor had he failed to perform any of his duties.

The defendants’ case can be stated shortly. According to the defence filed, it is the defendant's contention that it was entitled to summarily dismiss the plaintiff as from 12th October; 1987 because the plaintiff had misconducted himself in

The service of the defendant bymaking double payments or payments for undelivered goods and that he had also failed tocarry out his duties while in the service of the defendant. Anumber of instances were alleged but no evidence was called toshow that the plaintiff was the author of any of theinstances. The instances of misconduct were however denied bythe plaintiff and no direct evidence on the instances wereproduced by the defendant.

On the basis of the evidence produced herein, it was thecontention of the plaintiff's counsel that the dismissal wasunlawful as no charges were preferred against the plaintiff,nor were reasons given for the dismissal at the time ofdismissal. In his view the dismissal had been actuated bymalice, resulting into 2 letters of dismissal being issued bythe defendant. On damages, the learned counsel submitted thatthe plaintiff should be awarded damages on same basis as thoseawarded in HCCC No. 2013 of 1989 between Charles KariukiWambugu (who was the plaintiff's deputy) vs. the defendant. Tosupport his submission he referred the court to C.A. CivilAppeal No. 197 of 1992 C.P.C. Industrial Products (Kenya) Ltd.vs. Omweri Angima (unreported) in which the court upheld anaward of 15 months salary for wrongful dismissal which wascoupled with malice. Damages for mental anguish were howeverdisallowed.

On the other hand, it was the contention of thedefendant's counsel that the dismissal was lawful in the light of the auditors, reports." Consequently in his view thedefendant's letters dismissing the plaintiff summarily waseffective as from the 31/5/1988. He also submitted that anemployee is not entitled to notification of intended dismissalor a chance to defend himself under the Employment Act. Ondamages, he admitted that the case was similar to HCCC No. 2013of 1989 between C. K. Wambugu vs. the defendant but the courtshould not award damages to the defendant as he had beenlawfully dismissed.

On the evidence on record, as can be seen, the mainissue which arises in this case as in the case of C. K.Wambugu, is whether the rules of natural justice were followedby requiring the plaintiff to defend himself prior to the Boardof the defendant deciding to terminate the services of theplaintiff. As in the Wambugu case, the audit report, theletters of dismissal or termination and evidence on record donot indicate that this was ever done. The defendant's witnesscould not help the court as he was not with the defendant'sBoard when the plaintiff suffered the dismissal herein. Theonly direct evidence on the point, as in the Wambugu case, isby the plaintiff, namely that he was at no time required torespond to any of the. allegation before the various decisionswere taken or recommendations made. Consequently the decisionsof the defendant's Board were contrary to natural justicethereby rendering the plaintiff's dismissal unlawful. Further, the allegations of misconduct though alleged, were not provedby any direct evidence. They were explained by the plaintiffand in the view of this court were not sufficient to entitlethe defendant to summarily dismiss the plaintiff as the letterwhich first terminated the employment merely "spoke of loss ofconfidence" and did not refer to gross misconduct. If thereason for termination had been gross misconduct I believe thatthe defendant would have stated so at the earliestopportunity. In this court's judgment therefore, as in thecase of Wambugu, and for reasons given in the said case, whichI hereby adopt, the principles of natural justice apply to thiscase and the plaintiff therefore suffered unlawful dismissal ashe was not given a chance to meet the allegations on which isdismissal was based. On account of the above findings theanswer to the first issue herein is that the letters of 31stMay, 1988, 10/6/1988 and 27th January, 1989, were not ultravires the defendant's Board. The Board had in the first placethe appointed the plaintiff and was therefore entitled to terminatethe employment of the plaintiff as he was their employee. Theaforesaid letters therefore had legal effect. The answer tothe second issue is that there is no evidence that theplaintiff was guilty of gross misconduct and even if he hadbeen, the defendant's Board was not entitled to terminate hisservices summarily without giving him a chance to defendhimself. Consequently misconduct or none was of no consequence in the light of the court's finding that rules of naturaljustice had been breached by the defendant in terminating theplaintiff's services. As a result of the above conclusions andas in the Wambugu case, the letters of 31/5/88 sent to theplaintiff by the defendant operated as unlawful termination ofservices from that time i.e. from 31/5/88 and not from the timethe plaintiff was merely interdicted to facilitateinvestigations.

On damages I find that in dismissing the plaintiff theplaintiff disregarded the principles of natural justice and itsown terms of service. In the case of C.P.C. IndustrialProducts (Kenya) Ltd. vs. Omweri Angima C.A. C.A. NO. 197 of 1992 Muli JA stated as follows at page 9 of his judgment:

"The appellant company chose to ignore the terminationclause and were in breach of the contract of service oftheir employee the respondent. They cannot hold therespondent bound by the breached termination clausewhich they had abandoned for to do so would betantamount to "having their cake and eating it". Therespondent is therefore entitled to a reasonable noticefor loss of his career." I entirely agree with the above holding. In the current case, the defendants chose not to be bound by the terms of the contract of service relating to termination of service. Consequently his entitlement falls to be determined on the basis of reasonable notice having regard to the peculiar circumstances of the case.

In the instant case, it is observed that the plaintiff had spent all his lifetime in the employment of the defendant.

He was 52 years at the time his chosen career was abruptlybrought to an end. At such an advanced age, it is not easy forone to get an alternative employment especially in aspecialised field of librarianship at such a high level. Underthe provisions of S. 15(l)(c) of Trade Disputes, the courtthere under can award compensation of up to 12 months salary. Iam not aware of the maximum period which this court can awardin respect of reasonable notice. In the aforesaid case of CPC,the court of appeal upheld 15 months, although Muli JA thought12 months were more appropriate. On my part and having regardto the circumstances under which the plaintiffs services wereterminated herein including the aborted prosecution which wouldhave further made it difficult for the plaintiff to mitigatehis losses by looking for alternative employment, an award of20 months salary would be reasonable, and I so award herein.As the plaintiff's salary was then Shs. 11,410/= plus houseallowance of Shs 6500/= and entertainment allowance of Shs.1000/= per month, his gross pay would be Shs. 18,910/= therebymaking the award hereunder a sum of Shs. 378,200/=.

The plaintiff also asked to be awarded the difference ofhis full pay and the amount paid to him until 31/5/88. He alsoasked for salary up to the date the second letter oftermination was sent to the plaintiff in January, 1989. I seeno difficulty in allowing the first limb i.e. the sum of Shs.39,935/= withheld during interediction. The second limb does not arise as by the time the letter was written, the plaintiffhad already been wrongfully dismissed. It was a superfluousletter.

As regards entertainment allowance, I find that if theplaintiff's employment had not been wrongfully determined hewould have received it until he is lawfully discharged. Itherefore award to him the entertainment allowance as from thedate of interdiction to the date of dismissal, a total sum ofShs. 8,000/=.

The plaintiff also claims the defendant’s pensioncontribution. As I have found that the plaintiff waswrongfully dismissed, he is entitled to the defendantscontribution which is said to be Shs. 136,35650. I also awardto the plaintiff his leave days conceded to be 43 daysamounting to Shs. 16,354/= plus a sum representing the leavedays he would have earned if he remained in employment untilafter 20 months of reasonable notice.

As regards general damages, apart from the above, Iagree with the learned counsel for the defendant that in masterand servant cases, no such award can be made. It is includedin the reasonable notice figure.

In the upshot I enter judgment for plaintiff for -

(a) Shs. 39,935/= being unpaid salary duringinterdiction.

(b) Shs. 378,200/= being 20 months gross pay in lieuof reasonable notice.

(c) Shs. 8,000/= for entertainment allowance until31/5/88 when wrongfully dismissed.

(d) Shs. 136,35650 being the employers contributionto the defendants pension plus the sum which thedefendant would have contributed if the plaintiffhad remained in employment until the period forreasonable notice had elapsed.

(e) Shs. 16,350/= agreed leave days plus a sumrepresenting the leave days he would have earnedduring the 20 months of reasonable notice.

(f) Costs and interest.

(g) In default of agreement of any further sums dueunder (d) and (e) the matter to be referred tothe Principal Deputy Registrar for assessment.

Orders accordingly.

Dated and delivered at Nairobi this 25th day of September, 1996.

G. P. MBITO

JUDGE