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ELRCPartially AllowedMemorandum of Claim filed 5 January 2012 (Cause filed in Nairobi)· [2014] KEELRC 1432 (KLR)

Keziah Nduta Kiema & 10 others v Lions Niru Shah (Chairman, Lions School Management Board) Respondent [2014] KEELRC 1432 (KLR)

Employment and Labour Relations Court
21 November 2014
2,645 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled the school fired nine teachers without a fair hearing, so it ordered compensation even though the misconduct allegations may have been genuine.

What this practically means

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Executive summary

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Nine nursery school teachers and a head teacher employed by Lions Schools were summarily dismissed by letters dated 24 November 2011 on grounds of gross professional misconduct, namely soliciting unauthorised coaching fees and caning and verbally abusing learners. The Claimants sued for declarations that the dismissals were unfair and wrongful and for terminal benefits. The Respondent admitted the terminations but maintained they were factually founded and procedurally fair, alleging prior warnings and an opportunity to make representations. Its trustee testified that complaints were received from about 70 parents, that the teachers were called to a meeting and chose to say nothing, but he could not name any specific child caned or any teacher who caned a pupil. The Court identified two issues: whether the dismissals were unfair, and whether remedies were merited. It held that under section 41 of the Employment Act, 2007 the burden of demonstrating procedural fairness lies on the employer and, applying a WHAT, WHO, WHEN and HOW test, found the Respondent had failed: the termination letters had been prepared the day before the Claimants were handed them at a staff meeting, and no documented hearing took place. The dismissals were therefore procedurally unfair, rendering inquiry under sections 43 and 45 unnecessary. The court awarded each Claimant one month pay in lieu of notice and compensation of 4 months gross wages, increased to the maximum 12 months for the Claimant employed since 1976. Claims for November 2011 salaries (already paid) and gratuity (contractual entitlement accruing only after 3 years) were declined. The names of two persons joined without a formal order were expunged. Costs were awarded to the Claimants.

Key legal issues

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01

Procedural fairness of the summary dismissals

Holding

The summary dismissals were procedurally unfair; the Respondent failed to discharge the statutory burden under section 41

Reasoning

The termination letters were prepared and dated the day before the Claimants were summoned to a staff meeting where they were merely handed the letters. No documentation of a hearing existed; the Respondent's witness could not say what charges were put, by whom, when and how. The Claimants were not recorded as present at the parents' meeting of 15 November 2011 relied on by the Respondent.

p. 4
02

Remedies under section 49(1)(c) of the Employment Act, 2007

Holding

Each Claimant entitled to one month pay in lieu of notice and compensation of 4 months gross wages, save the 3rd Claimant who got the maximum 12 months given service from 1976

Reasoning

The award under section 49(1)(c) is discretionary and governed by the factors in section 49(4), which a party seeking relief must clearly canvass. Considering the length of service of nearly 10 years for most Claimants and the ex gratia payments already made, 4 months gross wages was appropriate; the 3rd Claimant's exceptionally long service since 1976 justified the maximum 12 months.

p. 5
03

Claim for gratuity

Holding

Gratuity claim failed as the contractual entitlement accrued only after 3 years of service

Reasoning

The Claimants did not lay any statutory foundation for the gratuity claim, so the court examined the contracts. All Claimants voluntarily entered new contracts from 2010 to 2012 providing for service gratuity after 3 years, and none served the minimum period. There was no evidence of coercion or unconscionability.

p. 5
04

Joinder of the 4th and 5th Claimants

Holding

The names of Ema Valentine Waiyaki and Rhoda Chepngetich Koech were expunged as Claimants for want of any formal joinder order

Reasoning

The record did not show how the two persons became Claimants in the Cause; their names first appeared in the Respondent's List of Documents. With no formal order for joinder on record, the court struck out their names.

p. 2

Legal principles established

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  • Under section 41 of the Employment Act, 2007, before dismissing an employee on grounds of misconduct, poor performance or physical incapacity, the employer must inform the employee of the reasons and afford an opportunity to make representations
  • The burden of proving procedural fairness rests on the employer
  • A dismissal decision taken before hearing the employee cannot be procedurally fair; where the hearing process is undocumented, the court examines what allegations were put, by whom, when and how
  • Because the hearing requirement in section 41 is mandatory, the court need not inquire into the validity of reasons under sections 43 and 45 where procedural unfairness is established

Court orders

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  1. 1.One month pay in lieu of notice to each of the nine Claimants
  2. 2.Compensation of 4 months gross wages under section 49(1)(c) of the Employment Act, 2007 to eight Claimants (Keziah Nduta Kiema, Prisca Lubya, Aclean Chepkemoi Rono, Dorothy Florence Shisungu, Amitaban Ashokumar Patel, Shalin Wason, Mary Ogada and Joyce Kemunto Oira)
  3. 3.Compensation of 12 months gross wages to the 3rd Claimant, Mary Mbone Shisungu, for her employment from 1976
  4. 4.Specific monetary awards totalling Kshs 80,080; 86,410; 340,288; 90,605; 86,410; 90,755; 217,500; 118,290 and 109,900 respectively to the nine Claimants
  5. 5.Costs of the suit awarded to the Claimants

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007sections 35(1)(c) and 36
  • Employment Act, 2007section 43
  • Employment Act, 2007section 45
  • Employment Act, 2007section 49(1)(c) and section 49(4)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007 and Labour Relations Act framework)

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, "Keziah Nduta Kiema & 10 others v Lions Niru Shah (Chairman, Lions School Management Board) Respondent [2014] KEELRC 1432 (KLR)", Case Analysis (2014). Memorandum of Claim filed 5 January 2012 (Cause filed in Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1432/eng@2014-11-21

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