[2006] KEHC 1218 (KLR)
The court found that the appellant's own evidence supported the lower court's award of Kshs.2,054 as his Provident Fund contribution, not the higher amount claimed. The court further held that the appellant's dismissal was lawful, as it was based on proven fraudulent conduct during his employment, notwithstanding...
Source-derived case information.
- Citation
- [2006] KEHC 1218 (KLR)
- Parties
- Appellant: Peter Njenga Gathera; Respondent: Postal Corporation of Kenya
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 535 of 2003
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- ARM Visram
- Legal Topics
- Wrongful Dismissal, Terminal Benefits, Provident Fund, Severance Pay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Peter Njenga Gathera
Appellant
Postal Corporation of Kenya
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appellant was wrongfully dismissed from employment.
- 2 Whether the appellant was entitled to terminal benefits and the amount due from the Provident Fund.
- 3 Whether the lower court erred in disregarding the appellant's evidence and in the quantum awarded.
Ratio Decidendi
The court found that the appellant's own evidence supported the lower court's award of Kshs.2,054 as his Provident Fund contribution, not the higher amount claimed. The court further held that the appellant's dismissal was lawful, as it was based on proven fraudulent conduct during his employment, notwithstanding his acquittal in a related criminal case. The lower court's findings were based on unchallenged evidence, and there was no error in law or fact. Consequently, the appeal lacked merit and was dismissed with costs to the respondent.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 535 of 2003
PETER NJENGA GATHEA ………………..…..................................................………….. APPELLANT
VERSUS
POSTAL CORPORATION OF KENYA ……….................................................……… RESPONDENT
(An Appeal from the Judgment of Hon. (Mrs.) M. A. Murage, SRM in Milimani Commercial Courts Civil Suit No. 7979 of 1995 delivered on 22nd July, 2003).
JUDGMENT
By a Plaint dated 14th July, 1995, and amended 4th October, 2000, the Appellant (Plaintiff in the lower court) claimed damages for wrongful dismissal and terminal benefits amounting to Kshs.166,563. 10. The Respondent, in a defence dated 1st September, 1995, denied the claims and averred that the dismissal was lawful.
The lower court, in its Judgment dated 22nd July, 2003, dismissed all the Appellant’s claims, except Kshs.2,054/= being his contribution to the Provident Fund to which he was entitled. It is against that Judgment that the Appellant has appealed to this Court, citing the following four grounds of appeal:
1. That the learned magistrate erred in law and fact in relying on the evidence of the defence which was res judicata as the matter had been determined earlier by a court of competent jurisdiction.
2. That the learned magistrate erred in law and fact by failing to make an award as prayed in paragraph 7 (a) to (e) of the plaint.
3. That the learned magistrate erred in law and fact in awarding Kshs.2,054/= while documentary evidence tendered to her was for Kshs.16,740/=.
4. That the learned magistrate erred in law and fact by totally disregarding the Appellant’s evidence.
Mr Sane, Counsel for the Appellant, abandoned ground 1 relating to “res judicata”. With respect to the other grounds, Mr Sane argued that the lower court ignored the Appellant’s evidence relating to his claims outlined in paragraph 7 (a) to (e) of the Plaint; that the Appellant had contributed Kshs.16,742/= to the Provident Fund, but was awarded only Kshs.2,054/=; and that his dismissal was wrong and accordingly was entitled to full severance pay.
In his reply, Mr Issa, for the Respondent, submitted that the Appellant’s own evidence (page 16 of the Record) showed that he had contributed Kshs.2,054/= and not Kshs.16,742/= to the Provident Fund; that no evidence was led to prove any of the claims in the Plaint; and that the dismissal here was based on fraud that the Appellant had committed, which he eventually admitted, and even refunded part of the money which he had fraudulently obtained.
This being a first appeal, it is my duty to assess and re evaluate the evidence before the lower court, bearing in mind that this court has neither seen nor heard the witnesses and should, therefore, make allowance for the same. I must be sure that the findings of facts made by the learned magistrate are based properly on the evidence before her and that she has not acted on wrong principles in reaching her conclusion. Now, having warned myself of that, let me examine the relevant evidence before the lower court.
With respect to the Appellant’s claim for Provident Fund, the record of his own evidence on page 16 shows that his contribution amounted to Kshs.2,054/= and no more. The lower court was correct in making this award.
With respect to the other claims, the lower court found as a fact that the Appellant was involved in fraudulent transactions in the course of his duties, and that despite his acquittal in a related criminal case, he was lawfully dismissed from employment. This finding is clearly based on the evidence before the Court, which was not challenged. Having reviewed the evidence, I am satisfied that the lower court came to a correct finding of fact.
Accordingly, and for reasons outlined, this appeal is dismissed with costs to the Respondent.
Dated and delivered at Nairobi this 12th day of October, 2006.
ALNASHIR VISRAM
JUDGE