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Court of AppealPartially AllowedEmployment and Labour Relations Court Appeal (unnumbered in judgment)· [2024] KECA 360 (KLR)

Lockwood Girls High School v Peter Wafula Wasike

Court of Appeal of Kenya
22 March 2024
4,800 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed a school unfairly sacked its principal, but cut his compensation from 12 months' salary to 6 months.

What this practically means

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Executive summary

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Lockwood Girls High School appealed against the judgment of Radido J. of the Employment and Labour Relations Court at Nakuru delivered on 20th July 2017, which found that the summary termination of its Principal, Peter Wafula Wasike, was procedurally unfair and awarded him salary arrears of KSh. 587,926 and 12 months' salary (KSh. 840,000) as compensation. The appellant argued that the trial Judge shifted the burden of proof contrary to section 47(5) of the Employment Act and section 107 of the Evidence Act, that the termination was justified by poor performance and fraud, and that the awards were excessive. The Court of Appeal (Ochieng, Gachoka and Korir, JJ.A) framed three issues: lawfulness of the termination, entitlement to the awards, and costs. It held that the burden of proof in employment disputes is dynamic: it starts with the employee alleging unfair termination and shifts to the employer to justify grounds and procedure, reading section 47(5) in consonance with sections 107 and 108 of the Evidence Act and endorsing the Supreme Court's decision in Samson Gwer v KEMRI. The Court found no misdirection by the trial Judge. On liability it held that valid reasons cannot stand where the statutory procedure under section 41 is not followed; the respondent was handed a termination letter in Nairobi without a hearing, and no targets were shown in the contract. The salary arrears award was upheld, the alleged verbal payment arrangement being an unsanctionable illegality. However, the Court vacated the 12 months' compensation, holding that the maximum award under section 49 must be reserved for grave injustice, and substituted 6 months' salary (KSh. 420,000). The appeal was therefore partially allowed. Departing from the rule that costs follow the event because of the cruel and inhumane manner of termination, the Court ordered each party to bear own costs of the appeal.

Key legal issues

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01

Burden of proof in unfair termination claims under section 47(5) of the Employment Act

Holding

The trial Judge did not misdirect himself; the burden properly starts with the employee and shifts to the employer once unfair termination is established on a balance of probability.

Reasoning

Section 47(5) of the Employment Act must be read in consonance with sections 107 and 108 of the Evidence Act. The evidentiary burden rests on the party whose claim would fail if no evidence were adduced. The employee first proves unfair termination; the burden then shifts to the employer to justify grounds and procedure. The court endorsed the Supreme Court's holding in Samson Gwer & 5 others v KEMRI that the burden only shifts once the initial evidential threshold is transcended.

p. 5
02

Whether the termination of the respondent's employment was fair and procedural

Holding

The termination was unfair because the employer failed to follow the statutory procedure under section 41 of the Employment Act, despite alleging poor performance.

Reasoning

Sections 45(2) and 43 oblige the employer to prove the reason for termination and fairness of the procedure. The respondent was handed a termination letter in Nairobi without any show cause letter, hearing, or disciplinary process; no evidence of procedure was adduced; and no targets were found in the written contract to support the poor-performance claim. The appellant also failed to follow its own disciplinary procedure in part 8 of the contract.

p. 6
03

Whether the trial court's awards should be interfered with on appeal

Holding

The award of salary arrears was upheld, but the 12 months' compensation was vacated and substituted with 6 months' salary.

Reasoning

Interference with discretionary remedies requires demonstration of wrong exercise of discretion. The salary arrears award was supported by the evidence, the verbal payment arrangement being an illegality the court would not sanction and unproved statutory deductions. On quantum, the court considered the abrupt termination, the respondent's approximately 20 months of service on a 36-month contract, the prompt payment in lieu of notice, and evidence of declining student numbers, and reduced the award.

p. 8

Legal principles established

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  • In employment disputes the burden of proof shifts: it starts on the employee who alleges unfair termination, then shifts to the employer to justify the grounds and procedure of termination.
  • An employer cannot rely on valid reasons for termination where the statutory procedure under the Employment Act was not followed; non-compliance with procedure renders the termination unfair.
  • A first appellate court must independently re-appraise the evidence and draw its own inferences, while bearing in mind it did not see or hear the witnesses.
  • An award of 12 months' salary under section 49 of the Employment Act is the maximum and should be reserved for occasions where grave injustice has been demonstrated.
  • A verbal agreement attempting to override a written agreement in furtherance of an illegality cannot be sanctioned by the court.

Court orders

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  1. 1.Appeal against liability dismissed - termination upheld as unfair
  2. 2.Award of KSh. 587,926 as salary arrears upheld
  3. 3.Award of 12 months' salary (KSh. 840,000) as compensation for unfair termination vacated and substituted with an award of 6 months' salary, KSh. 420,000
  4. 4.Each party to bear own costs of the appeal
On appeal from
Employment and Labour Relations Court at Nakuru
Jurisdiction invoked
First appeal to the Court of Appeal under Rule 31(1)(a) of the Court of Appeal Rules, 2022

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Lockwood Girls High School v Peter Wafula Wasike", Case Analysis (2024). Employment and Labour Relations Court Appeal (unnumbered in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/360/eng@2024-03-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.