In Central Bank of Kenya V Nkabu EALR (2002) 1 EA. 34 (CAK), it was held that when the contract of employment is terminated by giving notice according to the contract, damages should be restricted
to the period of the notice. Also See – Githinji V Mumias Sugar Co. Ltd (1991) LLR 1373 (CAK).
It is apparent therefore that though the appellant’s services were wrongfully terminated, on ground of the respondent’s
failure to observe the principle of natural justice, alterem partem, he would only be entitled to damages equivalent to the salary
he would have earned for the period of the notice, namely one month.
The learned Judge was thus correct. The appellant was not entitled to general damages, having already been paid one month’s
salary in lieu of notice. I would thus answer Issue No I in the affirmative.
The next issue is whether or not the appellant is entitled to claim the value of his personal property left in his office at the
respondent’s premises. This involves cash, books and a Laptop.
Regarding Shs. 11,966,626/= unlawfully withheld by the respondent, Mr. Katabalwa submitted that the appellant accounted for all moneys advanced to him and had never been notified that it was still owing.
He was hearing of it for the first time. He stated that the appellant was insistent all the receipts were still in his office together
with his other personal property he was using during the course of his official duties. He was denied access to his office and therefore
had no way of producing them before Court.
Mr. Tumusiime submitted that the appellant was not entitled to Shs. 11,966,626/=. The amount had been advanced to him a year before termination
of his services. The details appear on page 184 (record) as “Eng. Gakyalo’s unaccounted for funds.” He got these funds between August 2001 and August 2002. He was supposed to account for it by receipts within 30 days of taking it
but he never did.
Concerning his personal property allegedly left in his office. Learned counsel asserted that it was on record that the appellant
had sold the Laptop to the office and had been paid. Counsel did not show this to Court. As regards other properties, he failed to
produce any evidence to prove ownership, e.g. their serial numbers and general description. He stated that the appellant had been availed all the necessary equipment for the execution
of his duties. Furthermore, since he was claiming all this by way of special damages, he had to specifically prove it – Kibimba Rice Co. V Uma Salim C/A No 7/1988.
Mr. Tumusiime prayed for dismissal of the appeal with costs and for the cross-appeal to be allowed with costs here and below.
The learned Judge also held:
“……………….. I commend the Plaintiff’s over dutifulness and dedication to his work. I,
however, find it dangerous in the circumstances of this poverty stricken and corrupt country to give free license to any employee
to ferry into a public office tool and equipment which that office can ill-afford to adequately afford to the employee without the notice or permission of the employer. I hold that, notwithstanding the plaintiff’s failure to strictly prove the value of the property, he is not entitled to claim
it except on the condition I have underlined above.”
The learned trial judge noted:
“When he was referred to the list of the “unaccounted for funds,’ page 1 of exhibit “D1”, the plaintiff stated that he could only account by submitting reports and receipts but
that these documents were in the office to which the defendant had denied him accessibility.
In further cross-examination the plaintiff testified that other than the Shs. 11M/= he received the rest of his terminal benefits
……. At no time was the Defendant’s stand reversed. It is unfair and unjust to tie a man Kandoya and ask him to
engage in a just fight. I note that the Defendant unfairly withheld shs. 11,966,626/= …… He is entitled to it.”
I would quite agree with the Judge’s analogy. I think that the appellant was treated rather callously. It is common practice
for public officers to keep their valuables in public offices which are invariably more secure than private homes.
I thus find it a little bit difficult to understand why the respondent was reluctant to have the appellant escorted to his office,
to collect the accountability receipts for 11,966,626 and his other properties if they were there. The appellant was entitled to
be availed an opportunity to access this evidence. I would uphold the award of 11,966,626/- as the appellant’s entitlement.
As regards the other personal properties, the appellant hit a hitch here by claiming the value of these properties as special damages
in absence of sufficient proof. See Kibimba Rice Co. V Umar Salim CA No 7/1988 –; Shamji V Bhatt (1965) E.A 789.
In my view this appeal would partially succeed. The cross-appeal would succeed on grounds 1 and 2 but fail on ground 3.
The appellant would be entitled to 2/3, (two-thirds) of the costs of this appeal and similarly the cross- appellant would also be
entitled to 2/3 (two-thirds) of the costs of the cross-appeal, each party having failed on one ground.
Dated at Kampala this …15th … day of ……November……2007.