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ELRCPartially AllowedCause No. 980 of 2010· [2014] KEELRC 355 (KLR)

Laban Kithokoi v Africa Inland Church, Kenya Ziwani District Church Council [2014] KEELRC 355 (KLR)

Industrial Court of Kenya
30 June 2014
DMD.K.N. Marete
4,878 words in judgment
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The bottom line

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Kenya's Industrial Court upheld a pastor's summary dismissal for gross misconduct, awarding him only the Kshs.170,812 the church admitted it owed him.

What this practically means

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Executive summary

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The claimant, an Assistant Pastor employed by the respondent church from 8th May 1996, was summarily dismissed with effect from 1st July 2010 after a troubled posting history marked by rejected transfers, compulsory leave and repeated complaints of misconduct from congregations and church leadership. He claimed the dismissal was unfair, wrongful, malicious and in breach of the church's terms of service and constitution, seeking a declaration to that effect, reinstatement, special damages of Kshs.443,454.86 and, in the alternative, compensation of Kshs.15,582,678.86 with costs and interest. The respondent justified the dismissal as a consequence of gross misconduct, citing allegations of illicit sexual behaviour, incitement, insubordination, late reporting, misuse of church funds and rejection by every congregation to which he was posted, supported by warning letters, minutes and the claimant's own letter of apology. The court framed three issues: whether the termination was wrongful, unfair and unlawful; whether the claimant was entitled to the relief sought; and costs. Applying section 44 of the Employment Act, 2007, the court held that a pastor occupies a high calling and the allegations amounted to gross misconduct attracting summary dismissal; the claimant's bare denial without rebuttal failed on a balance of probabilities. The claim was dismissed, but the court ordered the respondent to refund Kshs.170,812.00, an amount it admitted as owing, and awarded costs to the respondent against the claimant.

Key legal issues

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01

Whether the summary dismissal of the claimant was wrongful, unfair and unlawful

Holding

The dismissal was lawful and justified as gross misconduct under section 44(d) of the Employment Act, 2007 and clause 6.4 of the respondent's terms of service.

Reasoning

The court held that a pastor is held to a high standard of conduct and the allegations of immorality, incitement, lack of commitment, insubordination and financial impropriety amounted to gross misconduct. The claimant produced no rebuttal beyond bare denial of the allegations, and on a balance of probabilities the evidence favoured the respondent. The respondent had also given the claimant multiple chances to reform, satisfying natural justice.

p. 9
02

Whether the claimant is entitled to the relief sought

Holding

The claimant was not entitled to the relief sought, but was entitled to the sum admitted by the respondent, Kshs.170,812.00.

Reasoning

Having found the dismissal lawful, the declarations, reinstatement, special damages and alternative compensation all failed. However, the respondent admitted owing the claimant Kshs.239,878.80, which it concretized to Kshs.170,812.00 after deducting the claimant's own owings, and the court ordered a refund of that amount.

p. 10

Legal principles established

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  • Allegations of gross misconduct against a pastor, including sexual immorality and conduct bringing the church into disrepute, may justify summary dismissal under section 44(d) of the Employment Act where proved on a balance of probabilities and where the employee fails to rebut the evidence.
  • Sexual immorality is personal and passionate misconduct that cannot readily be proved by empirical evidence; absence of direct testimony does not defeat a claim where the employee offers nothing in rebuttal beyond bare denial.

Court orders

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  1. 1.The claim is dismissed
  2. 2.The respondent to refund/pay the claimant Kshs.170,812.00 as admitted by the respondent
  3. 3.The costs of the cause to be borne by the claimant

Authorities

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Legislation

  • Employment Act, 2007Section 44 (particularly 44(d))

Cases cited (1)

  • Wilson Nduati Njoroge vs The Attorney General & Another
    2005 eKLR
Jurisdiction invoked
Original jurisdiction of the Industrial Court over employment and labour relations disputes (memorandum of claim filed under the Industrial Court's jurisdiction); no specific constitutional or statutory provision invoked in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Laban Kithokoi v Africa Inland Church, Kenya Ziwani District Church Council [2014] KEELRC 355 (KLR)", Case Analysis (2014). Cause No. 980 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/355/eng@2014-06-30

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