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ELRCPartially AllowedNot stated in judgment· [2014] KEELRC 791 (KLR)

Kudheiha v B.O.G Ngaru Girls Secondary School [2014] KEELRC 791 (KLR)

Industrial Court of Kenya
11 February 2014
NANELSON ABUODHA
1,239 words in judgment
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The bottom line

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A Kenyan court ruled that school staff employed by a Board of Governors still deserve civil-service-equivalent pay and full exit benefits, though only from the dates official circulars took effect.

What this practically means

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Executive summary

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This first-instance judgment of the Industrial Court at Nyeri, delivered by Nelson Abuodha J on 11th February 2014, determined a memorandum of claim dated 17th October 2011 in which the claimant, a former Copy Typist at Ngaru Secondary School appointed by its Board of Governors on 1st September 1987, sought compensation for her dismissal and a recalculated exit package of Kshs.614,363 based on civil service schemes of service, particularly the 2008 circulars. The respondent, acting through the CBA between the Ministry of Education and the claimant's Union, offered Kshs.355,461/60, arguing the claimant was a BOG employee to whom Public Service Commission schemes did not apply. The court framed the sole issue as whether the claimant was an employee of the BOG and, if so, whether she could benefit from PSC circulars. It found she was a BOG employee, but her terms were subject to Legal Notice No. 262 of 1993 issued under Section 33 of the Education Act, which required her terms to mirror those of equivalent civil service posts, effective only from the dates of the respective circulars. Since the claimant exhibited circulars only for 2004-2008, the court confined the comparison to that period onward. The court ordered service pay for 22 years, three months' salary in lieu of notice, 74 days' leave pay, and remitted the dispute to the District Labour Officer Kirinyaga for fresh conciliation on salary deficits, house allowance (up to six years) and November 2009 arrears.

Key legal issues

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01

Employer identity and applicability of PSC schemes of service

Holding

The claimant was appointed by and was an employee of the respondent's BOG, not the Public Service Commission; however, her terms and conditions were, by virtue of Legal Notice No. 262 of 1993, to be similar to those recommended for equivalent civil service posts under the applicable scheme of service.

Reasoning

The claimant's letter of appointment dated 1st September 1987 was issued by the Board of Governors, and her salary scale was revised through the CBA between the Ministry of Education and her Union. Her terms were nonetheless subject to Legal Notice No. 262 of 1993 issued under Section 33 of the Education Act, which required BOG-employed staff in professional cadres to be engaged on terms similar to equivalent civil service posts per the applicable scheme of service.

p. 2
02

Temporal limit on the application of PSC circulars

Holding

The court could interfere with the calculation of the exit pay only if remuneration was not in compliance with Legal Notice No. 262 of 1993, and only from August 1993 onwards, and in practice only for the period covered by the exhibited 2004-2008 circulars.

Reasoning

The court held that circulars apply only from their effective dates; since the claimant was employed in 1987, only circulars in force from their respective effective dates could apply. The claimant exhibited circulars only for 2004-2008, so the comparative analysis was confined to the period from end July 2004 to 2008 and subsequent circulars until termination in January 2010.

p. 2

Legal principles established

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  • An employee of a Board of Governors, though not a civil servant, may be entitled to terms and conditions of service similar to equivalent posts in the Civil Service as per the applicable scheme of service by virtue of Legal Notice No. 262 of 1993, but only from the effective dates of the respective circulars.

Court orders

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  1. 1.The claimant be paid service pay for 22 years at the rate of one month's salary for each complete year of service
  2. 2.The claimant be paid 3 months salary in lieu of termination notice
  3. 3.The claimant be paid 74 days salary in lieu of leave
  4. 4.The District Labour Officer Kirinyaga to re-conciliate the dispute afresh, limited to a comparative analysis of actual salary paid between 30th July 2004 and 8th January 2010 against PSC circulars, with any deficit paid to the claimant
  5. 5.The District Labour Officer to inquire into house allowance and, if not included in salary, calculate and pay it up to a maximum of 6 years
  6. 6.The District Labour Officer to inquire into and order payment of arrears of salary for November 2009 if not paid
  7. 7.Either party be at liberty to apply to court for any additional directions
  8. 8.The matter be mentioned in sixty days from the date of the judgment to record final orders

Authorities

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Legislation

  • Legal Notice No. 262Legal Notice No. 262 dated 26th August, 1993
  • Education ActSection 33
Jurisdiction invoked
Employment dispute referred for compensation for dismissal; memorandum of claim dated 17th October 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Kudheiha v B.O.G Ngaru Girls Secondary School [2014] KEELRC 791 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/791/eng@2014-02-11

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