[2004] KEHC 2009 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI COMMERCIAL COURTS CIVIL SUIT NO 2094 OF 2000

KENYA COMMERCIAL BANK LTD …………….……… PLAINTIFF

VERSUS

EDDY NDETO GITETU …………………….…………… DEFENDANT

RULING

When this suit came up for hearing on 11th February, 2004, the parties informed me that the Plaintiff’s claim had been withdrawn with costs to the defendant. What remained was the counter-claim which was for hearing.

Before commencement of the hearing of the counter-claim, counsel for the Plaintiff applied to argue a Preliminary Objection in part of law. The defendant’s counsel had no objection and the counsel for the Plaintiff was allowed to raise her preliminary objection.

Mrs Mbanya learned counsel for the Plaintiff submitted that the preliminary objection had been pleaded in paragraph 11 of the Defence to counter-claim. The pleading is as follows:-

“The Plaintiff further avers that the prayers sought on the counter - claim are u ntenable in law and that the counter -claim ought to be struck out in limine.”

In her oral submissions before me Mrs Mbanya argued that, there is no dispute that the defendant resigned from the Plaintiff’s employment. The defendant has given reasons for his resignation. On the basis of the Plaintiff’s own resignation he sought in the counter-claim general damages for wrongful or unlawful termination. The defendant does not claim special damages.

Mrs Mbanya submitted further that it is now settled law that general damages cannot be awarded in a case of termination of employment wrongful or lawful. Mrs Mbanya relied on – KISUMU C A no 108 of 1998 (unreported) JAMES N SONYE vs SIAYA TEACHERS’ CO - OPERATIVE SAVINGS & CREDIT SOCIETY & ANOTHER. The Court of Appeal confirmed a High Court decision dismissing a claim for general damages for wrongful termination of employment and for general damages for defamation.

Mrs Mbanya further relied on –NAIROBI C A No 194 of 1991 (unreported) ALFRED J GITHINJI vs MUMIAS SUGAR CO LTD . In this case the Court of Appeal held that upon the termination of employment of an employee, he is entitled only to the amount specified in his contract of service in lieu of notice and not to general damages at large.

In reply Mr Mutua opposed the preliminary objection and argued that the defendant is entitled to general damages as pleaded in the counter-claim at paragraph (d) in which the defendant bases his claim on “loss of good health.” He submitted that loss of good health cannot be quantified and entitled the defendant to claim general damages.

Mr Mutua further submitted that the pleadings are not sufficient to deal with the preliminary objection. In his view the Plaintiff should have filed a notice of motion under Order 6 Rule 13 of the Civil Procedure Rules. Mr Mutua maintained that this kind of preliminary objection should be discouraged. He relied in – MUKISA BISCUIT MANUFACTURERS CO LTD vs WEST END DISTRIBUTORS LTD (1969) E A 696 .

In this case the East African Court of Appeal the predecessor of the present Court of Appeal held that a preliminary point “raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct.”

Mr Mutua submitted that the Plaintiff’s preliminary objection is a disguised Notice of Motion under Order 6 Rule 13 and should not be allowed.

In a brief reply Mrs Mbanya argued that the Mukisa Biscuit case advances her point which is that the defendant claims general damages for unlawful termination of employment which even if true is not permitted in law.

Having set out above the rival submissions, I have found as follows:-

1. That the defendant at paragraph 8 of the counter-claim alleges that he was unlawfully harassed and victimised until he was forced to resign from his employment with the Plaintiff.

2. That the Plaintiff claims that he suffered serious financial loss and damage.

3. That in the particulars of loss the defendant lists:-

(a) Loss of earnings

(b) Loss of employment

(c) Loss of staff pension scheme

(d) Loss of good health

4. That in the particulars of harassment the defendant lists:-

(i) Exposing the defendant to very hostile working conditions

(ii) Asking the defendant to perform the unexpected

(iii) Transferring the defendant from his normal duties to new duties without training

(iv) Ensuring that the defendant works under great mental strain and stress.

The defendant claims that arising from the above, the defendant resigned. The Plaintiff therefore constructively dismissed or terminated his employment and he is therefore entitled to damages for wrongful or unlawful dismissal.

It is now settled that no claim for special damages can be allowed unless specifically pleaded. JAMES N SONYE case supra restated this position at page 179.

In this case loss of earnings, loss of employment, loss of staff pension scheme are in the nature of special damages. I hold that they have not been specifically pleaded as they have not been quantified.

The defendant believes that by pleading loss of good health and what he calls particulars of harassment he would be entitled to general damages. In JAMES N SONYE case supra, their Lordships following the English case ofADDIS vs GRAMOPHONE CO LTD (1907) 1 AC 488held that “it is now settled that no damages for distress, mental anguish and injured feelings may be awarded.” I hold that loss of good health without more would fall in this category and in this case the particulars of harassment listed confirm the finding that the defendant’s claim is for damages for to what he describes at paragraph 8 (4) as “great mental strain and stress.”

In the result I uphold the preliminary objection and find that the counterclaim as pleaded cannot succeed and it would be a waste of judicial time to take evidence on the same. The defendant’s counter-claim is accordingly struck out with costs.

Dated at Nairobi this 11th day of March, 2004.

F. AZANGALALA

JUDGE

11. 3.2004