[2004] KEHC 1048 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL APPEAL NO. 63 OF 2003

TEITA SISAL ESTATE ……………………………….…… APPELLANT

Versus

JAMES OSIRI MIDIKA ………………………………..… RESPONDENT

J U D G M E N T

James Osiri Midika, the Respondent in this appeal pleaded in his plaint filed in Mombasa SRMCC No. 2299 of 2000 that he was at all material times employed by the Appellant as a sisal cutter. On the 25th April 1999 he was suspended from his duties on suspicions of theft. He was, however, not charged with any criminal offence but was instead cleared of all charges facing him. When he reported to the personnel manager instead of being reinstated he was summarily dismissed. Aggrieved by what he calls “such dismissal malicious prosecution (sic)” which was unreasonable and caused him mental anguish he filed the said suit and claimed for Sh. 7,200/= being three months’ salary in lieu of notice, Sh. 2,400/= unpaid leave, transport of Sh. 1,300/= and Sh. 12,500/= for services as well as general damages for malicious prosecution and unlawful dismissal, costs and interest. The Appellant filed a defence in which it admitted that in early May 1997 the Respondent was suspended after he was found with some scrap metal, apparently belonging to the Appellant, but on the 26th of the same month after a meeting between his trade union and the personnel department of the Appellant his suspension was lifted and he resumed duty. In September 1997 the Respondent left employment on his own accord. The Appellant therefore denied liability and prayed for the dismissal of the suit with costs.

After hearing the case the Senior Principal Magistrate found for the Respondent and awarded him Sh. 23,400/= special damages and Sh. 100,000/= general damages for defamation of character. That provoked this appeal. The Appellant set out six grounds of appeal which can be summarized and rephrased as follows:-

1. That the trial magistrate erred in failing to write a proper judgment as required by Order 20 Rule 4 of the Civil Procedure Rules.

2. That the trial magistrate erred in finding that the Respondent had been summarily dismissed when there was evidence that he was on duty and continued working after the alleged date of summary dismissal.

3. That the claim for special damages was not claimed as required by law.

4. That the learned trial magistrate erred in failing to appreciate that general damages are not awarded for wrongful termination of employment and or breach of contract.

5. That the learned trial magistrate erred in law in failing to appreciate that the plaint did not disclose any cause of action for defamation as no particulars of alleged deformation were pleaded.

At the hearing of the appeal counsel for the Appellant abandoned ground 4 as there was no award made for wrongful dismissal.

On ground 1 Mr. Nyamboi, counsel for the Appellant submitted that the judgment prepared by the trial magistrate was “a sham and a mockery” as it did not comply with Order 20 Rule 4 of the Civil Procedure Rules. Counsel for the Respondent did not reply to that submission.

Order 20 Rule 4 of the Civil Procedure Rules provides that:

“Judgments in defended suits shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision.”

I have examined the judgment prepared by the trial magistrate. Although it is short, I, however, do not think it is right to describe it as a sham or mockery. It contains all the elements of a judgment as required by the said provision. This ground of appeal therefore fails.

Ground 2 is a complaint against the learned trial magistrate’s finding that the Respondent had been summarily dismissed. Although the learned trial magistrate did not make a specific finding that the Respondent was summarily dismissed he found for the Respondent on that point when he held that the Respondent had proved his case.

An examination of the evidence tendered before the trial court does not support that finding. Beatrice Cerere, D.W.1 testified for the Appellant and produced a master roll showing that the Respondent was on duty and worked upto September 1997.

The Respondent himself admitted in cross-examination that he continued earning salary from April to September 1997. Richard Juma, D.W.2, who was a trade union official testified that when the Respondent’s services were terminated he (the witness) held a meeting with officers of the Appellant company at which it was agreed that the Respondent should be reinstated and he was.

In the light of this evidence there was therefore no basis for the finding that the Respondent had had proved his case including a claim for unlawful dismissal. I find that the Respondents suspension was lifted following the agreement reached between his trade union official and the Appellant. He was reinstated and continued working for and earning from the Appellant upto September 1997 when he left on his own accord and took up employment in another company in the neighbourhood. The allegation of unlawful dismissal and claims for both general and special damages arising therefrom have therefore no basis and grounds 2 and 3 therefore must succeed.

As I said earlier ground 4 was abandoned. The complaint in ground 5 is against the award of Sh. 100,000/= general damages for defamation. There was absolutely no basis for this award. The Respondent did not in his plaint claim damages for defamation. He claimed general damages for malicious prosecution and unlawful dismissal. There was no evidence that the Respondent was charged and or prosecuted for any criminal offence. In his evidence he claimed without giving any particulars that he had been defamed but that was not pleaded.

A claim for defamation is a serious one. The law requires it to be pleaded with particularity and, of course, proved on a balance of probabilities. The court cannot grant a relief not pleaded and prayed for. See Kenya National Examination Council Vs Republic, Ex-parte Geoffrey G. Njoroge & others Civil Appeal No. 266 of 1996 (C.A.). Any evidence adduced on such unpleaded claim as was done in this case is therefore a wasted effort. Ground 5 of the appeal therefore succeeds and the award of Sh. 100,000/= is hereby set aside.

In sum I find that the Respondent failed to prove his case and the awards of Sh. 23,400/= as special damages and Sh. 100,000/= as general damages for defamation were totally unwarranted. I therefore allow this appeal and substitute the trial court’s findings with an order dismissing the Respondent’s case with costs. The Appellant shall also have the costs of this appeal.

DATED and delivered this 16th day of November 2004.

D.K. Maraga

Ag. JUDGE