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ELRCPartially AllowedCause No. 1160 of 2014· [2016] KEELRC 1103 (KLR)

Ezekiel Muriithi Nyamu v Beatrice Gathoni Itibi (Sued on behalf of the Board of Governors, Kabete High School) & another [2016] KEELRC 1103 (KLR)

Employment and Labour Relations Court of Kenya
9 June 2016
HWHellen S. Wasilwa
1,498 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan school guard fired without a hearing won Kshs. 159,077 because his employer couldn't prove a valid reason or fair process.

What this practically means

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Executive summary

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The Claimant, in person, sued the Principal of Kabete High School (on behalf of its Board of Governors) and the Attorney General, claiming he was employed from 1 January 1996 and was suspended and then effectively terminated following a robbery at the school on 7 May 2013, despite being exonerated by the police. He sought notice pay, accrued leave, holiday pay, salary for days worked, unremitted NSSF contributions, 12 months' compensation for unlawful dismissal, a certificate of service, costs and interest. The Respondents admitted the employment but asserted the Claimant had received warnings for negligence, was procedurally terminated, and had been paid his dues. The Respondent's Principal testified he remained on suspension and that she lacked authority to dismiss him, while the Respondent's second witness described him as diligent and unaware of any disciplinary warnings. The Court framed three issues: valid reason, due process, and remedies. It held the Respondents to their pleadings, finding they admitted termination in their defence, and concluded there was no valid reason for termination. It further found no proof of a hearing as required under Section 41 of the Employment Act, rendering the termination procedurally unfair and unjustified under Section 45(2). The claim was partially allowed: the Court awarded a total of Kshs. 159,077 comprising notice pay, accrued leave, salary for 12 days worked, unremitted NSSF contributions and 12 months' compensation, plus costs and interest, with the Respondents to bear the costs of the suit.

Key legal issues

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01

Whether there were valid reasons to dismiss the Claimant

Holding

No valid reason for termination existed

Reasoning

The Respondent's own witnesses contradicted each other: the Principal claimed the Claimant remained on suspension, while the defence pleading admitted termination and payment of dues. The police cleared the Claimant of the robbery, and no communication of termination was ever issued. The Court held the Respondents to their pleadings and found the termination had no valid reason.

p. 3
02

Whether the Claimant was accorded due process before dismissal

Holding

The Claimant was not accorded due process

Reasoning

The Respondents failed to demonstrate any disciplinary process; no minutes of any hearing were annexed. Section 41 of the Employment Act requires the employer to explain the reasons for termination and hear the employee's representations before dismissal. No such hearing was proved, so the termination was procedurally unfair.

p. 3
03

What remedies the Claimant is entitled to

Holding

Notice pay, accrued leave, salary for days worked, unremitted NSSF and 12 months' compensation awarded

Reasoning

Having found the termination unfair and unjustified under Section 45(2) of the Employment Act, the Court awarded the prayers as claimed: one month's notice pay, 21 days accrued leave, 12 days worked in May 2013, the unremitted NSSF amount, and the maximum 12 months' salary as compensation, plus costs and interest.

p. 4

Legal principles established

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  • An employer must prove both valid reason and fair procedure for a termination to be fair under Section 45(2) of the Employment Act
  • An employer must accord an employee a hearing under Section 41 of the Employment Act before termination, and failure to demonstrate such a process renders the termination procedurally unfair

Court orders

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  1. 1.1 month's salary in lieu of notice of Kshs. 10,970
  2. 2.Accrued annual leave 21 days of Kshs. 7,679
  3. 3.12 days worked in May 2013 of Kshs. 4,388
  4. 4.Unremitted NSSF amount of Kshs. 4,400
  5. 5.12 months' salary as compensation for unlawful termination of Kshs. 131,640
  6. 6.Total award of Kshs. 159,077 plus costs and interest
  7. 7.The Respondents to meet costs of the suit

Authorities

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Legislation

  • Employment ActSection 41(1) and (2)
  • Employment ActSection 45(2)
  • Employment ActSection 42(1)
  • Employment ActSection 44(3) and (4)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Article 162(2) Constitution establishing the Court inferred from Cause format; judgment does not expressly cite the provision)

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, "Ezekiel Muriithi Nyamu v Beatrice Gathoni Itibi (Sued on behalf of the Board of Governors, Kabete High School) & another [2016] KEELRC 1103 (KLR)", Case Analysis (2016). Cause No. 1160 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1103/eng@2016-06-09

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