[1994] KEHC 20 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA

Civil Suit 299 of 1990

SILAS MIHESO ...................................................................................PLAINTIFF

- Versus -

MODERN BUSINESS COMMUNICATIONS LIMITED...........DEFENDANT

J U D G M E NT

In 1984 the plaintiff was employed by the Furniture CentreLtd. in Mombasa. But in May he entered into negotiations withthe defendant's managing director.. Those discussion culminatedin two things: in the month of August 1984 the plaintiffvoluntarily quit his employment with the Furniture Centre andthen joined the M.B.C (the defendant). According to the letter,dated 31st August 1984 (Exh.Pl) the plaintiff was appointedcustomer Engineer with the defendant at a starting salary of£2520,p;a,

"plus the guaranteed bonus account-ing to £1080 (to) make a total of £3600 p.a." .

He was also told that he was "entitled to all M.B.C. staffbenefits."

In paragraph 8 of the plaint herein it is averred:

"Pursuant to the said agreement theplaintiff entered upon the saidemployment until 20th of May 1988when the said defendant wrongfully and in breach of the said agreementand without giving the plaintiffthree months' notice to determine thesaid employment by their letterdated 20th May 1988 dismissed theplaintiff with effect from 16th May1988 and refused to allow him intheir employ."

By this action he asserts that as a result of thedefendant's wrongful breach of the agreement' he suffered lossand damage. In paragraph 11 of the plaint he categorises andquantifies the loss. I will inevitably consider each of thoseaspects in the later parts of the judgment. ,

In its statement of defence the defendant made a totaldenial of all averments in the plaint. Paragraph 7 of thestatement of defence reads:

"Save as to which is expressly herein .admitted, the defendants denies each "and every allegation contained inthe -plaint as if the same was set outherein verbatim and traversedseriatim."

The variance of the issues raised by the parties calls fordetailed examination of the evidence adduced on each aspect.

First, there is a claim for refund of 3 months salary tobe paid to the previous employer viz Furniture Centre Ltd.

According to the plaintiff it was verbally agreed betweenhim and the managing director of the defendant that the latterwould pay money to Furniture Centre in lieu of the notice whichhe (the plaintiff) would have given before terminating hiscontract of employment This evidence is supported by the .letter (Exh.P2). However, in my view the cause of action inrelation to this aspect could only accrue to the plaintiff'sprevious employer who would have been entitled to the notice.Thus, it is impossible to see how the failure on the part ofthe Furniture Centre to have insisted on the payment in lieu ofnotice could have constituted a loss (or benefit) to the actualdefaulter on that contract; Consequently, I disclaim thisclaim.

J will now consider the evidence. in relation to thefollowing 3 items, namely:

(i) 3 months salary in lieu of notice;

(ii) Unpaid salary for the months of Apriland May 1988.

The relevant events "in relation to these aspects are traced to the letter dated 6th April 1988 (Exh.5) by which the plaintiff was transferred to Nairobi from Mombasa where he had stayedsince the date of the inception of his employment.

According to the plaintiff this letter came to him as ashock since it had been made to believe or understand that hewould always work in Mombasa; and that he was untransferable.But he agrees that, there was no written agreement between himand the defendant prior to his joining them. He said that ifit had been specifically indicated that at one stage he couldbe moved from Mombasa to another town he would have declinedthe offer which had been made to him by the. defendants andwould have remained in the employment of the Furniture Centre.

Despite his reluctance he wrote a letter dated 11th April1988 to the defendant (Exh.6). In this letter he complainedthat the notice for him to move to Nairobi was too short, andone which rendered it difficult for him to secure a house inNairobi for renting. In the letter he also mentioned that hehad been assigned to investigate an issue concerning one J.A. ,Aruko for completion of which he required more time. He alsoinquired whether he would be paid disturbance allowance.

In this connection it is pertinent to- read from a fewparagraphs of the defendant's letter in which the plaintiff wastransferred to Nairobi in order to gauge whether or not hisreaction or fears were reasonable and logical. They read asfollows:

"I do realise that you have a plot transfer problems in which case you can use, your leave to sort out the problems.

MBC will provide you with accommodation in Nairobi for two weeks while you are looking for a house.

A disturbance allowance equivalent to a quarter of your monthly salary will be paid. Transportation of luggage from Mombasa to Nairobi will be paid for on production of necessary receipts. Salary andallowances will be the same as you are getting now. Should yourequire any further clarification on the above points pleasedo not hesitate to contact me for further clarification."

'As I have already pointed Out, in P.Exh.6 the plaintiffevidently exercised his right expressed in the last sentence ofthe defendant's letter (Exh.5) to seek clarification on certainpoints: He complained that that notice had been too short toenable overcome his personal problems which were in fact knownto the boss; he had an office assignment which he had hot yetcompleted; he raised the difficulty he would encounter infinding a house to rent in Nairobi within two weeks; hewondered why he would now be paid ¼ of month's salary insteadof one full month's salary. Can it be said that his letter wasunnecessary and merely mischievous?

In my view, he raised some cogent points which an employeein a democratic regime is entitled to-raise. After all, the;letter from the boss showed that he was entitled to seekclarification on an issue with which he was dissatisfied or indoubt.

The plaintiff said in these proceedings that there was noreply to his letter. According to his evidence he then by continued to attend to his duties in the Mombasa office whileawaiting a reply to his letter. But instead he was dismissedin a letter dated 20th May, 1988.

The managing director who wrote that letter cited theplaintiff's failure to report to Nairobi on. the 16th May 1988,and failure to indicate what reasons had prohibited histransfer movement as the grounds prompting the dimissal. Itwas also said that he had deserted from duty during the period.

I must, first of all, deal with the aspect of desertionfrom duty since in these proceedings the defendants have citedit as their justification for the dismissal act taken against(him (the plaintiff). Did he desert duty? The plaintiff,absolutely denies that he deserted from duty.

The defendant's evidence was adduced by DW.l who was/ atthe time the Engineering Supervisor, and then by Mr. Muhanga(DW.2) who worked in the Mombasa branch. In the first place,the dismissal letter of 20th May, 1988 (Exh.7) does not specifythe Period during which the plaintiff had been absent from dutyand had not been working in Mombasa. Both DW.l and DW.2contended that the plaintiff's last working day was 22nd March,1988; they based themselves on the working sheet which,allegedly an engineer like the plaintiff was required tocomplete when on duty. But if this had been so, the supervisoror such other officer would have first written to the plaintiffand sought from him an explanation why he was absent from dutybefore concluding that the absence constituted gross breach ofthe contract of employment. The "transfer" letter is dated 6thApril, 1988. it did not all mention or allude to the plaintiff's absence from duty. There is nothing, in this letterwhich suggests that the plaintiff had been irregular inattending duty. On the contrary, the letter merely says thatthe plaintiff's proposed stint in Nairobi would him enhance hisskills and experience in handling the latest machines. I feelimpelled to highlight the relevant evidence of DW.l and DW.2 onthis point: .

DW.l said: "He (the plaintiff) never came to the officein the months of April and May 1988. Hehad no worksheets which were filled in atthe time; For, an engineer it is notpossible to be in the employment withoutfilling in the worksheets.

DW.2 produced (Exh.2) and then said:

"This document (Exh.2) does not informanybody that 22nd of March 1988 was the" last day he worked. It only shows that he worked on that day."

It is thus clear that the evidence of the DW.l and DW.2 ismere surmises: it does not conclusively show that the plaintiffdeserted duty, and if so, when.

I recapitalate the points which I have discussed asfollows:

(a) The plaintiff was entitled to write his letter (Exh.6). It is not a letter of a defiant employee; rather it was a letter from an obedient officer, who was onlyanxious or worried about certain aspects of his welfare.

(b) The letter (Exh.6) certainly deserved a reply from theboss in Nairobi.

(c) The failure on the part to reply that letter put the:employee in a position where he was hesitant and uncertain as to his position. He may very well have thought that the boss was still reconsidering his requests. This did not mean that he had defied the transfer order.

(d) There is no clear-cut evidence showing' that the plaintiff absconded from duty.

In my considered view, the defendant's officers haddeliberately precipitated the circumstances which they thensubsequently used to justify the dismissal of the plaintiff. It seems clear that the defendant's officers had not relishedor countenanced the plaintiff's presence in their establishment. In this view, I am fortified by the followingevidence of the DW:1:

"It is; the plaintiff who had started the Mombasa office. No transfer had ever taken place before that time. I have no evidence that we had the right to transfer the plaintiff."

The plaintiff's evidence is that he was enticed andinduced by many terms by the defendant's managing director into joining them. He creates an impression that his presence inhis former employer's establishment had posed a stiff challengeor threat to the survival or flourishing of the defendant'sbusiness in Mombasa. But after they had secured theirposition, they did not find the plaintiff any longer necessaryand so they calculatingly frustrated him and pushed him into asituation where they would justifiably get rid of him.

The plaintiff was thus entitled to notice of terminationof the contract of employment: he was not in breach of theemployment terms and conditions which warranted the summarydismissal. Consequently, I award him 3 months' salary in lieuof notice claimed at shs.14,400/-. Also, for reasons which Ihave discussed above I hold that the plaintiff was on duty inthe months of April and May 1988 and consequently, non-paymentof his salary for that period was unjustified. I allow hisclaim and award him shs.9,200/- on that score.Tea allowance and laundery allowance

The plaintiff has not proved on the balance ofprobabilities that although these "allowances were availablethey were specifically denied to him". He did not even adduceevidence that he lodged his claim for these allowances. SinceHis was a meticulously negotiated agreement it would be expected that he should have been explicitly informed" or thathe should have fully acquainted himself with the exact termsand conditions upon which he was joining the defendant beforedoing so. The letter (Exh.l) says that he was to be entitledto MBC staff benefit. It follows "that he' should have acquainted himself with the details regarding the "staff benefit" either before joining or as soon, he arrived there. So he would or should have submitted his claims for these allowances as they fell due or promptly raised the issue;. regarding non-payment. I find this belated claim untenable 'disallow it.. '

It is for the similar reasons that I disallow the claim -for "unpaid salary for August 1984. "

Leave allowance for- the period of April to September 1988was not proved and-the claim is disallowed.

Guaranteed commission: On the. basis of the letter (Exh.2)this claim can not be justified or be said to have beenproved. This letter is dated 10th April 1985. It said thatthe guaranteed commission had "ceased to be paid to you as atthe end of March 1985. " The plaintiff must be taken to haveabided by that letter since he continued in employment for thenext 3 years.

General damages: I have already held that the defendantdeliberately created difficult conditions for the plaintiff andturned round and used them to dismiss him. it is the defendantwho was in breach of the contract of employment. The measuredamages inthis regard is the amount which the employee wouldhave received if he had continued in accordance with thecontract. See Halbury's Laws of England 4th Edition Vol. 12paragraph 1178. But the employee is under duty to mitigate hisloss by taking other employment which is suitable andavailable. At paragraph 11 of same volume of Halbury's Iread the following statement:

"In action for breach of contract of employment a plaintiff who has been wrongfully dismissed must take reasonable steps to obtain other suitable employment. He is not entitled to remain idle at the defendant's expense simply becauseno precisely similar employment can be found, but must accept employment having regard to his standing,experience and personal history he can reasonably be expected to accept It is true that the plaintiff was in a specialisedposition; but there is no evidence that he would not have found an alternative employment as soon as he was wrongfully dismissed.

Upon all the foregoing reasons I award the plaintiffshs.,53,275/= being equivalent to salary for about 10 monthswithin which he would reasonably have obtained anotheremployment. His net salary was Shs. 5,327/50 per month at the time he was dismissed (See Exh, 10).

Ultimately, I have awarded the plaintiff the followingfigures:

(1) 3 month salary in lieu of notice with interest from the date of the plaint .. Shs.14,400/-

(2) Salary for April and May 1988 with Interest from the date of the plaint .. Shs. 9,200/

(3) General damages................... Shs.53, 275/-

With interest from the date of this judgment/

There will be judgment for those figures and costs of the suit.

Dated and delivered on the 13th October, 1994.

I.C.C WAMBILYANGAH

JUDGE