Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNotice of Motion dated 28th July 2015 with Statement of Claim of same date· [2015] KEELRC 275 (KLR)

Kenya Union of Employees of Polytechnics, Colleges and Allied Institutions (KUEPCAI) v Board of Management Ilmotiook Secondary School [2015] KEELRC 275 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
11 November 2015
2,678 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

#

A Kenyan employer who sidelined an employee on compulsory leave without a fair hearing or termination letter was ordered to reinstate him and pay 18 months' salary.

What this practically means

#

Executive summary

#
The Claimant Union, on behalf of grievant Mathews Ngetich, moved the Industrial Court by Notice of Motion dated 28th July 2015 seeking reinstatement, cessation of harassment and continued payment of salaries, together with a Statement of Claim. The grievant was engaged on 1st August 2008 as a Store Keeper, confirmed permanently on 1st October 2008, transferred in February 2012, and on 9th May 2014 placed on compulsory leave over allegations of abuse of procurement procedures and unbecoming conduct, extended by letter of 23rd June 2014. He was not afforded a genuine opportunity to defend himself before the Board of Management and no formal letter of termination was ever issued. Despite service, the respondent never appeared in court, filing only a Replying and Supporting Affidavit and a Statement of General Defence without leave. The court framed four issues: striking out the defence, the fairness of the termination, entitlement to relief, and costs. It struck out the defence for want of leave under Rule 13(4) of the Industrial Court (Procedure) Rules, 2010, given the respondent's casual approach. On the evidence, it found the employer had failed to prove reasons and fair procedure under Sections 43 and 45 of the Employment Act, 2007, and treated the absence of any termination letter as constructive termination that was wrongful, unfair and unlawful. Guided by Section 49(4), the court granted reinstatement as the primary remedy, within the three-year window and practicable given the low-calibre employment with no evidence of replacement. Judgment delivered on 11th November 2015 by D.K.Njagi Marete J.

Key legal issues

#
01

Striking out the Statement of General Defence filed without leave

Holding

The defence was struck out and expunged for want of leave under Rule 13(4) of the Industrial Court (Procedure) Rules, 2010, the respondent having filed out of time with no application for extension and a casual approach to court process.

Reasoning

The court noted the respondent was allowed seven days to respond but filed a Replying Affidavit on 19th August 2015 out of the directed timeline and never attended court on the hearing dates despite service. No application for extension of time to file the defence or other pleadings was made. The court characterized the respondent's conduct as careless, ignorant or arrogant, and struck out the defence for want of appropriate leave.

p. 4
02

Whether the termination was wrongful, unfair and unlawful

Holding

The compulsory leave with unsubstantiated misconduct allegations, the denial of an opportunity to defend himself before the Board of Management, and the absence of any formal letter of termination amounted to a constructive termination that was wrongful, unfair and unlawful, contrary to Sections 43 and 45 of the Employment Act, 2007.

Reasoning

The grievant was sent on compulsory leave on 9th May 2014 citing misconduct, the leave was extended on 23rd June 2014, and at the Board of Management meeting of 27th September 2014 he was not afforded a chance to defend his case. The employer did not appear or mount a defence, so failed to prove valid reasons and fair procedure under Sections 43 and 45. As no termination letter existed, the court deemed it constructive termination.

p. 5
03

Entitlement to reinstatement as a remedy for unfair termination

Holding

Reinstatement was granted, the court being guided by Section 49(4) of the Employment Act: the absence of a viable defence, the termination occurring within the three-year window, the low-calibre nature of the employment with no evidence of replacement, and the respondent's failure to counter the prayer for reinstatement.

Reasoning

The claimant made reinstatement the primary prayer. With no viable defence and the respondent at fault even at conciliation, and the termination occurring in 2014 within the three-year provision for considering reinstatement, practicability was established: the employment was of a low calibre and there was no evidence of replacement. The respondent did not counter the prayer despite ample opportunity.

p. 7

Legal principles established

#
  • An employer bears the burden of proving the reasons for termination; failure to do so renders the termination unfair.
  • Where an employee is sent on compulsory leave, never formally terminated by letter, and denied a fair hearing, the court may treat the situation as constructive termination which is wrongful, unfair and unlawful.
  • A defence filed without the leave of court required by Rule 13(4) of the Industrial Court (Procedure) Rules, 2010 will be struck out.

Court orders

#
  1. 1.A declaration that the compulsory leave imposed on the grievant by the respondent was unfair and unlawful
  2. 2.Reinstatement of the grievant to the employment of the respondent from the date of judgment without loss of seniority, continuity, benefits and privileges
  3. 3.The grievant to report back to work on 12th November 2015 at 800 hours
  4. 4.The respondent to pay the grievant unpaid salaries and allowances from May 2014 to date, being Ksh 12,260.00 x 18 months = Kshs.220,680.00
  5. 5.Costs of the suit to be borne by the respondent

Authorities

#

Legislation

  • Employment ActSection 49(1)(c)
  • Employment ActSection 43
  • Employment ActSection 45
  • Employment ActSection 49(4)
  • Employment ActSection 50
  • Employment ActSection 51
  • Industrial Court (Procedure) RulesRule 13(4)
Jurisdiction invoked
Employment Act, 2007 (Sections 43, 45, 49, 50, 51) and Industrial Court (Procedure) Rules, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya Union of Employees of Polytechnics, Colleges and Allied Institutions (KUEPCAI) v Board of Management Ilmotiook Secondary School [2015] KEELRC 275 (KLR)", Case Analysis (2015). Notice of Motion dated 28th July 2015 with Statement of Claim of same date. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/275/eng@2015-11-11

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