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ELRCDismissedCause No. 219 of 2015· [2016] KEELRC 780 (KLR)

Kenya Union of Employees of Polytechnics, Colleges and Allied Institutions (Kuepcai) v Board of Management Ilmotiook Secondary School [2016] KEELRC 780 (KLR)

Employment & Labour Relations Court of Kenya
19 July 2016
1,347 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld a school storekeeper's dismissal because evidence of misconduct and a fair hearing defeated the union's unfair termination claim.

What this practically means

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Executive summary

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The claimant union, KUEPCAI, sued on behalf of its grievant, Mr. Mathew Ngetich, a Storekeeper engaged by the respondent school on 1st August 2008 and confirmed on 1st October 2008. The union complained of a transfer from the main store to the Kitchen Store in February 2012, an alleged salary reduction, and a compulsory leave by letter of 9th May 2014 on allegations of abuse of procurement procedures and unbecoming conduct, followed by an extension of leave and a hearing before the Board of Management on 25th September 2014. It sought a declaration that the compulsory leave was null and void, reinstatement, back salaries and allowances, and in the alternative Kshs. 1,983,377.60 with interest, plus a certificate of service. The respondent denied the claim, asserting the grievant committed stealing by agent, made secret profits, apologised, and was afforded a hearing; it described the compulsory leave as necessary for an independent audit. The parties agreed to determination on the pleadings. Framing three issues - lawfulness of termination, entitlement to relief and costs - the court found the respondent's evidence of gross misconduct overwhelmingly outweighed the claimant's case and held the termination lawful. Consequently the claimant was entitled to no relief, and the claim was dismissed with each party bearing their own costs. Judgment was delivered on 19th July 2016 by D. K. Njagi Marete, J, with Mr. Japheth Agura appearing for the claimant union and no appearance for the respondent.

Key legal issues

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01

Whether the termination of the grievant's employment was wrongful, unfair and unlawful

Holding

The court found the termination lawful, holding that the respondent's evidence of gross misconduct outweighed the claimant's case

Reasoning

The court considered the claimant's assertion of unfair compulsory leave and termination against the respondent's defence that the grievant engaged in stealing by agent, made secret profits and was given a hearing before the Board of Management. The court found the respondent's evidence overwhelming and concluded the termination was lawful, noting the grievant's unreliability and loss of materials in his charge.

p. 4
02

Whether the claimant is entitled to the relief sought

Holding

No relief was granted; the claimant, having failed to prove unfair termination, was not entitled to any of the claimed sums

Reasoning

All heads of claim - unpaid salaries, underpayments, house and medical allowances, leave, notice, gratuity and 12 months' compensation under section 49(1)(c) of the Employment Act - were premised on unfair termination. That premise having failed, the entire claim collapsed and the claimant was granted nothing.

p. 4
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Who bears the costs of the cause

Holding

Each party to bear their own costs

Reasoning

Although the claim was dismissed, the court did not award costs to the successful respondent, instead directing that each party bears their own costs of the claim.

p. 4

Legal principles established

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  • Where the employer's evidence establishes gross misconduct and the employee was accorded a hearing, the termination is lawful and no relief follows

Court orders

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  1. 1.The claim is dismissed
  2. 2.Each party bears their own costs of the claim

Authorities

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Legislation

  • Employment Actsection 49(1)(c)
  • Employment Actsection 51
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (employment and labour relations dispute referred by Statement of Claim dated 28th July, 2015)

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, "Kenya Union of Employees of Polytechnics, Colleges and Allied Institutions (Kuepcai) v Board of Management Ilmotiook Secondary School [2016] KEELRC 780 (KLR)", Case Analysis (2016). Cause No. 219 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/780/eng@2016-07-19

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