Dancan Ouma Ojenge was employed by P.N. Mashru Limited, a giant Mombasa-based transport firm, as a spray painter in December 2011 and worked until May 15, 2014, when the company terminated his contract in circumstances he felt were unfair and unlawful.
It was alleged that he had stolen a computer box belonging to his employer and paraded alongside three other workers before a witch doctor hired by the company's general manager. After conducting a series of rituals on the quartet, the witch doctor declared Mr Ojenge guilty of the theft.
In a bizarre action, the firm's general manager then swiftly moved to sack the employees based on the witchdoctor's verdict—prompting protests from Mr Ojenge who challenged the decision in court and provoking questions on why the giant firm with operations across East Africa chose the unorthodox route of sorcery instead of conventional means including reporting the purported crime to law enforcers.
"We must ask ourselves what P.N. Mashru Limited intended to achieve by resorting to the unorthodox method of investigation by engaging the services of a witch doctor.
"Such unconventional and unlawful action undertaken by a sophisticated entity aptly described by the learned judge as 'not a gullible simpleton, a village outfit, but…a major enterprise, resident in the resort city of Mombasa' must have been intended to achieve more than just vindicate a course of justice. In those circumstances we agree that P.N. Mashru Limited intended to derive some benefit from its action by resorting to 'wizardry' as the learned judge termed its action," said the judges of the Court of Appeal.
Involvement of the witch doctor to find the suspected thief has left the company with a loss of Sh450,000 after the Court of Appeal upheld the decision of High Court judge James Rika to award Mr Ojenge the amount in the form of punitive damages.
He will also be paid the equivalent of four months' gross salary in compensation for unfair termination at a total of Sh64,000.
The basis for Mr Ojenge's claim for punitive damages was that his name was soiled yet it was the electrician who was responsible for the removal of the computer box, before spray painting.
"There is no doubt that Mr Ojenge was subjected to the indignity of undergoing rituals at the hands of a witch doctor.
"The company's action was not only criminal but also demeaning and contrary to Article 28 of the Constitution," said appellate judges Gatembu Kairu, Pauline Nyamweya, and George Odunga while throwing out the company's appeal.
According to the evidence adduced by Mr Ojenge at the Employment and Labour Relations Court in Mombasa, the witch doctor visited the workplace upon the invitation of the general manager following the loss of the computer box on May 14, 2014.
The witch doctor carried some sticks. He held the sticks on one end, while the general manager held the other end, according to Mr Ojenge.
Employees were asked in turns, to place their hands between the sticks. If the witch doctor declared the grip on the particular hand of an employee, in between the sticks was strong, it was concluded the individual was guilty of stealing the company's computer box.
The grip of the witch doctor's sticks, on the hands of Mr Ojenge and the hands of three other employees, was declared to be strong. Consequently, the company found them guilty of an employment offence.
They were forwarded to Mariakani Police Station on the same date — May 14, 2014 — and spent the night in custody. The following day they were released without charge and were asked to report to the human resource manager.
Mr Ojenge was informed that there would be no criminal prosecution, but his contract, together with those of his co-employees, had been terminated.
He sought legal assistance from a lobby group, Kituo cha Sheria, and upon the intervention of Kituo cha Sheria, the company's human resource manager made an offer to him to return to work.
Reaffirming the involvement of the witch doctor in the process of termination, Mr Ojenge said it was not true as stated by the company, that police officers first went and arrested the concerned employees.
On its part, the company denied the involvement of a witch doctor.
"At no time did management engage the services of a witch doctor to assist in arresting the suspects," its witness said in court.
But the court ruled in favour of Mr Ojenge and in the punitive damages, because the company decided to involve witchcraft, the High Court explained that punitive damages are awarded when a person or entity's behaviour, is found to be especially harmful.
"They are aimed at reforming, or deterring, a respondent and others, from engaging in conduct similar to that which formed the basis of the lawsuit," said Justice Rika in his judgment that has been upheld by the appellate court.
The court concluded that the company used witchcraft in dealing with its employees. This conduct, according to the court, was especially harmful and retrogressive to industrial relations. Witchcraft remains outlawed, and has no place in dispute resolution, in a civilized society, said the judge.
" The practice of witchcraft appears commonplace in Kenya. Driving or walking through the streets, one is confronted with posters advertising 'mganga.' Among the potpourri of services offered by these witchdoctors, is favourable intervention in resolving cases pending in our various courts.
It is not unusual to find charms, placed at strategic corners inside the courtroom, in the false hope of influencing the mind of the court," said Justice Rika.
In its rejected appeal, the company had argued that the judge erred in fact and law by concluding that it used witchcraft in dealing with the employee and in awarding him punitive damages.
"The judge erred in fact and law by failing to consider that witchcraft is a criminal offence and that the allegation of witchcraft against the company ought to have been heard and determined in a criminal court, where the burden of proof is that of beyond reasonable doubt," it said.
It added that the judge erred by failing to appreciate that allegations of witchcraft are purely criminal, therefore, the Employment and Labour Relations Court did not have jurisdiction in that regard.
According to it, the judge did not appreciate that the application of the Witchcraft Act strictly falls within the jurisdiction of the Criminal Court.
"It is trite law that a man can only be punished to the extent provided in law and therefore the judge in taking up such role of punishing the Appellant ought not to have exceeded the limit provided simply because the matter has taken up the nature of a civil dispute," it was argued.
But the appellate judges dismissed the appeal and said there was no reason to interfere with the finding that the employee was entitled to punitive damages.
