[2018] KEELRC 410 (KLR)
The court found that the appellant was constructively dismissed for cause under the regime of the repealed Employment Act. The trial magistrate did not err in treating the suspension letter as a dismissal letter, and the appellant failed to prove his case on a balance of probabilities. The respondent's failure to...
Source-derived case information.
- Citation
- [2018] KEELRC 410 (KLR)
- Parties
- Appellant: Moses Otieno Muruka; Respondent: B.O.G Murang'a High School
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 3 of 2019
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- AN Makau
- Legal Topics
- Unfair Dismissal, Constructive Dismissal, Gross Misconduct, Burden of Proof, Employment Act Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Otieno Muruka
Appellant
B.O.G Murang'a High School
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appellant was constructively and unfairly dismissed from employment.
- 2 Whether the learned Resident Magistrate misapplied statutory law and regulations governing employer-employee relationships.
- 3 Whether the trial court erred in relying on hearsay evidence and failing to draw adverse inference from the respondent's failure to call direct evidence.
Ratio Decidendi
The court found that the appellant was constructively dismissed for cause under the regime of the repealed Employment Act. The trial magistrate did not err in treating the suspension letter as a dismissal letter, and the appellant failed to prove his case on a balance of probabilities. The respondent's failure to call witnesses did not shift the burden of proof, which remained with the appellant. The appellate court, after independently evaluating the evidence and law, upheld the trial court's decision and dismissed the appeal for lack of merit.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- Each party to bear their own costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS
COURT OF KENYA AT NYERI
CIVIL APPEAL NO. 3 OF 2018
MOSES OTIENO MURUKA..........................................................APPELLANT
VERSUS
B.O.G MURANG’A HIGH SCHOOL........................................RESPONDENT
(Being an Appeal from the Principal Magistrate’s Court Murang’a in PMCC No. 57 of 2006 on 26th January 2009)
BETWEEN
MOSES OTIENO MURUKA............................................................PLAINTIFF
AND
B.O.G MURANG’A HIGH SCHOOL..........................................DEFENDANT
JUDGMENT
1. The Appeal herein is from the decision of the learned Chief Magistrate Hon. J. Gathuku made in the case between the Plaintiff (Appellant herein) and the Defendant (the Respondent herein). In the appeal, the Appellant raises 6 grounds which were in the main that the learned Resident Magistrate misconstrued or misdirected himself in relation to the application of statutory laws, regulations and orders governing the employer-employee relationship and hence came to the wrong conclusion that the Appellant’s case was unproved, that the learned Resident Magistrate wrongly applied case law to arrive at the conclusion he did that the Appellant had been rightly dismissed without analyzing the evidence to see if the allegation against the Appellant had been proved, that the learned Resident Magistrate disregarded legal notices on the grounds that they had not been produced yet they are matters of law not facts, that the learned Resident Magistrate relied on hearsay evidence and failed to make any adverse inference from the Respondent’s failure to call direct evidence and that the learned Resident Magistrate’s decision was against the weight of evidence. The Appellant thus sough the appeal be allowed with costs and the suit in the lower court be allowed with costs.
2. The Respondent sought the dismissal of the appeal as it raised no legal grounds for determination by the court. The Respondent asserts that the grounds of appeal were dealt with by the learned Resident Magistrate in arriving at his decision.
3. The appeal raises both factual and legal challenges to the decision of the learned Resident Magistrate in his determination. This is a first appeal and my mandate as the first appellate court is to evaluate the evidence afresh by relooking at the evidence adduced and the law applied and determine the appeal independently. The Court of Appeal in PILKenya Ltd v Oppong [2009] KLR 442heldas follows:-
“It is the duty of the Court of Appeal, as a first appellate court, to analyse and evaluate the evidence on record afresh and to reach its own independent decision, but always bearing in mind that the trial court had the advantage of hearing and seeing the witnesses and their demeanour and giving allowance for that.”
4. The matter proceeded before Hon. Githuku who heard and saw the witnesses. He delivered the judgment on 26th January 2009. In the record of proceedings recorded before the learned Resident Magistrate, there was evidence adduced that there were items that were lost and the Appellant herein was suspected to have stolen them. He was asked to give an explanation and subsequently given a suspension letter. After the letter of suspension dated 22nd March 2004, there was no further communication from the Respondent. This letter was treated by the learned Resident Magistrate as the dismissal letter. The dismissal of the Appellant was under the regime of the repealed Employment Act cap. 226 Laws of Kenya. Section 5 thereof made provision for dismissal for gross misconduct. The Appellant was constructively dismissed for cause and there was no error in the finding by learned Resident Magistrate to warrant interference with his decision. The failure to call witnesses by the Respondent is no panacea for the failure by the Appellant to prove his case on a balance of probabilities. The appeal is devoid of merit and the finding of the learned Resident Magistrate is upheld. The appeal is dismissed. Each party to bear their own costs.
It is so ordered.
Dated and delivered at Nyeri this 13th day of December 2018
Nzioki wa Makau
JUDGE