John Willice Opot v Starehe Boys Centre [2013] KEELRC 798 (KLR)
The bottom line
#A Kenyan court ruled an employee cannot be fired for engaging in politics, awarding a former Starehe Boys staff member nearly Kshs. 383,000.
What this practically means
#Executive summary
#Key legal issues
#Date of employment
The Claimant was employed on 1st October 2003, not October 2004 as the Respondent alleged.
The court relied on the NSSF statement showing continuous remittances from October 2003, which the Respondent did not deny, together with a payslip of June 2004 and a tenancy agreement of 14th June 2004, despite the Respondent's letter of appointment dated 15th October 2004.
Applicability of KUDHEIHA Collective Bargaining Agreement
The Claimant's terms of employment were not covered by the KUDHEIHA CBA.
The agreement produced was incomplete, lacking first and last pages, period and signatures. The Respondent denied being a party. The Claimant himself had asserted that Starehe Boys Centre is an NGO and its constitution does not show ownership or sponsorship by the Ministry of Education.
Applicability of the Code of Regulations for Teachers and Code of Regulations for Public Service
Neither Code applied to the Claimant's terms of employment.
The Teachers Code applies only to teachers employed by the Teachers Service Commission and the Public Service Code applies to the civil service; Starehe Boys Centre is not part of the public or civil service, and the Claimant was not an employee of either Commission. In any event the two codes could not apply simultaneously as alleged.
Infringement of constitutional rights and unfair termination
The termination for engaging in active politics infringed the Claimant's constitutional rights to freedom of association and political participation and was unfair.
The Respondent admitted terminating the Claimant for political activity. Political activity is not gross misconduct under Section 44 of the Employment Act, and Section 46 bars political opinion as a fair reason. No terms of service prohibiting political participation were produced, no disciplinary rules existed under Section 12, and the Respondent's constitution did not restrict its employees' political activity.
Service pay
The Claimant, having worked 6 years and 11 months, was entitled to service pay for 6 years and was awarded the balance of Kshs.15,303.50.
Employment having been found to commence on 1st October 2003 and termination on 8th September 2010, the Claimant had served nearly 7 years; he had been paid service for only 5 years, and the balance for the remaining year was awarded.
Compensation for unfair termination
The Claimant was awarded 12 months' salary, Kshs.367,284, as compensation for unfair termination.
Having found the termination unfair, the court exercised its discretion under the Employment Act's cap of 12 months' salary, taking into account all the circumstances of the case, and declined to follow the pre-Employment Act authority relied on by the Claimant.
Legal principles established
#- Political opinion or affiliation shall not constitute a fair reason for dismissal under Section 46 of the Employment Act.
- Engaging in political activity is not a ground of gross misconduct under Section 44 of the Employment Act.
- Compensation for unfair termination is capped at 12 months' salary under the Employment Act 2007.
Court orders
#- 1.Declaration that the termination of the Claimant's employment by the Respondent was unfair
- 2.Award of Kshs.382,587.50 to the Claimant (Kshs.15,303.50 service pay balance plus Kshs.367,284 being 12 months' salary as compensation)
- 3.Costs of the suit to the Claimant
- Jurisdiction invoked
- Industrial Court jurisdiction under the Employment Act and Constitution over employment disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Willice Opot v Starehe Boys Centre [2013] KEELRC 798 (KLR)", Case Analysis (2013). Statement of Claim dated 7th March 2011, filed 14th March 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/798/eng@2013-09-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.