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ELRCPartially AllowedCause No 571 of 2015· [2016] KEELRC 456 (KLR)

Josephine Mukulu Kimuyu v John Akida [2016] KEELRC 456 (KLR)

Employment and Labour Relations Court
28 October 2016
JRJames Rika
1,334 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Claimant, a Teacher employed by the Respondent on 6th May 2011 at a gross salary of Kshs. 10,000 per month, sued for notice pay, annual leave pay, compensation for unfair termination, loss of future earnings and housing allowance after her contract was terminated on 30th January 2015. She testified she was ordered to surrender school books and leave without being heard or given reasons, and that her troubles began after she complained that a male teacher was molesting one of her children, who attended the same school. She was arrested and taken to Port Reitz Hospital at the Respondent's instigation on allegations of mental illness. The Respondent filed a Statement of Response alleging undisclosed mental illness, lack of a valid teaching certificate and violent traits, and that leave was taken during school vacations, but did not participate in the hearing or call its two lined-up witnesses. The Court found no medical evidence supported the mental illness claim, that the employer never reasonably accommodated the Claimant, and that the arrest and confinement were events meant to justify a pre-determined termination. The certificate allegation also failed since the Respondent had employed and retained her for five years. Termination was held unfair for want of valid reason and fair procedure. The Court awarded 10 months' salary (Kshs. 100,000) plus one month's notice pay (Kshs. 10,000), declined leave pay, housing allowance and loss of future earnings, awarded costs to the Claimant, ordered a Certificate of Service, and directed satisfaction of the judgment within 30 days.

Key legal issues

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01

Valid reason for termination

Holding

Neither mental illness nor lack of a valid teaching certificate amounted to valid justification; no medical evidence was produced and the employer had retained the Claimant for 5 years

Reasoning

The employer alleged mental illness but produced no medical records and offered no psychiatric care or reasonable accommodation during 5 years of employment. The certificate allegation was equally untenable since the employer employed and retained her for years after recruitment. Arrest and forcible confinement in a mental institution could not constitute valid justification and was an event meant to justify a pre-determined termination.

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02

Procedural fairness

Holding

The Claimant was not heard on any allegation before termination, rendering the process unfair

Reasoning

The Claimant was simply told to surrender school books and vacate premises; she was neither heard nor given reasons. Forced committal to a mental institution substituted for any disciplinary process. The Court found the manner of performance of the termination not fair at all.

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03

Quantum of relief

Holding

10 months' salary compensation and one month notice pay granted; leave pay, housing allowance and future earnings refused

Reasoning

Compensation of 10 months' salary was granted for the unfair termination. Leave pay was refused because teachers ordinarily take leave during school vacations and the Claimant did not prove otherwise. Housing allowance failed because the contractual salary was expressed as gross. Loss of future earnings had no legal or factual basis.

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Legal principles established

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  • An employer alleging incapacity by reason of mental illness must avail medical evidence supporting the claim
  • An employer relying on incapacity must show reasonable accommodation of the employee before termination
  • Termination without hearing the employee on the allegations is procedurally unfair

Court orders

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  1. 1.Declaration that termination was unfair
  2. 2.Respondent to pay the Claimant Kshs. 100,000 compensation for unfair termination and Kshs. 10,000 in notice pay - total Kshs. 110,000
  3. 3.Costs to the Claimant
  4. 4.Certificate of Service to issue
  5. 5.Judgment to be satisfied within 30 days of delivery
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (claim for unfair termination and employment benefits)

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, "Josephine Mukulu Kimuyu v John Akida [2016] KEELRC 456 (KLR)", Case Analysis (2016). Cause No 571 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/456/eng@2016-10-28

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