Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause 1038 of 2012· [2012] KEELRC 168 (KLR)

KUDHEIHA V B.O.G. LUGULU GIRLS HIGH SCHOOL [2012] KEELRC 168 (KLR)

Industrial Court of Kenya
23 October 2012
MOMaureen Onyango
1,069 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kenyan school unfairly dismissed an employee without a hearing and had to pay damages, but reinstatement was refused because too much time had passed.

What this practically means

#

Executive summary

#
The claimant union, KUDHEIHA, reported a dispute to the Minister for Labour under Section 62 of the Labour Relations Act after conciliation failed, and filed a memorandum of claim on behalf of grievant Miss Ressa Nekesa Wanyonyi, a cateress/housekeeper employed by the respondent school from 1st October 2005. She was suspended in September 2009 on allegations of colluding with others to invite a witch doctor to perform ungodly activities in the school, was asked to show cause, replied and apologised, but was summarily dismissed. Her appeal to the Board of Governors was rejected in May 2011. The respondent did not appear despite proper service, and the case proceeded exparte. The court held that the respondent disregarded the procedure under Section 41 of the Employment Act and the collective bargaining agreement by dismissing the grievant without a hearing, rendering the dismissal unfair. Reinstatement was refused as more than three years had elapsed; the dismissal was instead reduced to normal termination. The court awarded underpayments of Shs.153,270 proved against civil service salary review circulars and two months' notice pay of Shs.28,838 under the CBA, but rejected claims for annual leave (no evidence of untaken leave, and no retirement) and service gratuity (under 10 years' service, no retirement in public interest). Judgment was entered for the claimant in the sum of Shs.182,108. No costs order was recorded.

Key legal issues

#
01

Procedural fairness in summary dismissal

Holding

The dismissal was unfair because the Respondent did not give the grievant a hearing as required by Section 41 of the Employment Act and the CBA

Reasoning

Section 41 of the Employment Act requires an employer, before terminating employment on grounds of misconduct, to explain the reasons to the employee in a language the employee understands, allow a representative, and hear and consider representations. The Respondent disregarded this procedure and the termination provisions of the collective bargaining agreement, so the dismissal was unfair. Reinstatement was barred by lapse of over 3 years.

p. 2
02

Entitlement to underpayments and notice pay

Holding

Underpayments of Shs.153,270 and two months' notice pay of Shs.28,838 were awarded

Reasoning

The court examined the documents on salary review for civil servants and was satisfied the underpayment claim was proved. Notice entitlement of two months flows from the collective bargaining agreement. Together these produce a total award of Shs.182,108.

p. 2

Legal principles established

#
  • Before summarily dismissing an employee, an employer must comply with Section 41 of the Employment Act by explaining the reasons for termination and hearing the employee's representations, failing which the dismissal is unfair

Court orders

#
  1. 1.The dismissal is reduced to normal termination
  2. 2.Reinstatement is not ordered as more than 3 years had elapsed since dismissal
  3. 3.Judgment entered for the claimant in the sum of Shs.182,108 comprising underpayments of Shs.153,270 and notice pay of Shs.28,838
  4. 4.Claims for annual leave and service gratuity rejected

Authorities

#

Legislation

  • Labour Relations ActSection 62
  • Labour Relations ActSection 65(1)
  • Employment ActSection 41
  • Employment ActSection 42(1)
  • Employment ActSection 44(3) and (4)
Jurisdiction invoked
Labour Relations Act, Sections 62 and 65(1) - dispute reported to Minister for Labour and conciliation failed; Industrial Court Cause filed under the Labour Relations Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "KUDHEIHA V B.O.G. LUGULU GIRLS HIGH SCHOOL [2012] KEELRC 168 (KLR)", Case Analysis (2012). Cause 1038 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/168/eng@2012-10-23

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