Keziah Nduta Kiema & 10 others v Lions Niru Shah (Chairman, Lions School Management Board) Respondent [2014] KEELRC 1432 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Procedural fairness of the summary dismissals
The summary dismissals were procedurally unfair; the Respondent failed to discharge the statutory burden under section 41
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.
Remedies under section 49(1)(c) of the Employment Act, 2007
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
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.
Claim for gratuity
Gratuity claim failed as the contractual entitlement accrued only after 3 years of service
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.
Joinder of the 4th and 5th Claimants
The names of Ema Valentine Waiyaki and Rhoda Chepngetich Koech were expunged as Claimants for want of any formal joinder order
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.
Legal principles established
#- 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
#- 1.One month pay in lieu of notice to each of the nine Claimants
- 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.Compensation of 12 months gross wages to the 3rd Claimant, Mary Mbone Shisungu, for her employment from 1976
- 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.Costs of the suit awarded to the Claimants
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007 and Labour Relations Act framework)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.