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ELRCPartially AllowedAppeal No 1 of 2017· [2017] KEELRC 1969 (KLR)

Board of Governors, St. Joseph’s Girls Secondary School Chepterit v Benjamin Kiptum Togom [2017] KEELRC 1969 (KLR)

Employment and Labour Relations Court
29 September 2017
1,872 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that suspending an employee without pay, without a contract or law permitting it, means the employer still owes full wages for that entire period.

What this practically means

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Executive summary

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This is a first appeal, transferred by consent from the High Court to the Employment and Labour Relations Court, against a magistrates' court judgment of 20 March 2003 awarding a former teacher Kshs 543,910 for unlawful dismissal and breach of contract. Radido J restated the first appellate duty to re-evaluate evidence and reach independent conclusions. The Court held that the Employment Act, 2007, on which the Appellant's submissions relied, was not in force at the material time, so the claim fell to be determined under the repealed Employment Act, common law and the contract. On the evidence, the Respondent was sent on compulsory leave with pay in 1998, then suspended without pay from January 1999 until his dismissal on 10 August 2002, and remained an employee until formally dismissed. Because no statutory or contractual authority for unpaid suspension was produced, applying McKenzie v Smith the Court held the suspension breached the contract and the Respondent was entitled to wages for that period. However, no contractual or statutory basis for yearly increments existed, so that award was set aside as erroneous; and, absent proof of an agreed notice period, three months' pay in lieu of notice was reduced to one month's salary. The Court also noted the Appeal had technically stood dismissed for non-prosecution and was resuscitated by consents outside the Civil Procedure Rules, but declined to declare it incompetent in the interests of substantive justice. The trial judgment was set aside and judgment substituted for Kshs 469,480, with each party bearing its own costs in both courts.

Key legal issues

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01

Applicable statute

Holding

The Employment Act, 2007 did not apply to a cause of action arising in 1998-2002

Reasoning

The Appellant relied extensively on the Employment Act, 2007 and section 44 thereof, but that statute came into effect in 2008, after the cause of action. The Court held the claim fell to be determined under the repealed Employment Act, common law and contractual provisions.

p. 3
02

Suspension without pay

Holding

The unilateral suspension without pay from January 1999 breached the contract as it had no statutory or contractual foundation

Reasoning

The Respondent was on suspension without pay from January 1999 until dismissal in August 2002. No statutory or contractual authority for such suspension was placed before the trial Court. Relying on McKenzie v Smith, the Court held unilateral suspension without authority constitutes breach of contract, entitling the Respondent to wages for the period.

p. 4
03

Yearly increments

Holding

The award of yearly increments was erroneous

Reasoning

No letter of appointment or contractual document providing for annual salary increments was produced. The trial Court therefore erred in law and fact in awarding that head of claim.

p. 4
04

Pay in lieu of notice

Holding

One month's salary in lieu of notice was reasonable where no agreed notice period was proved

Reasoning

Under the pre-2007 regime an employer could dismiss without cause if it paid the agreed notice. No evidence of the agreed period existed; as the Respondent was paid monthly, one month's salary (Kshs 10,670) was held reasonable, substituting three months' pay.

p. 4
05

Competence of the Appeal

Holding

Although technically the Appeal had stood dismissed and was resuscitated by a route not envisaged under the Civil Procedure Rules, the Court declined to declare it incompetent

Reasoning

The Appeal stood dismissed by default after non-compliance with Mativo J's order, yet the parties purported to reinstate it by consent formalised by the Deputy Registrar. Given the parties' clear intent, substantive justice, lapse of time and that the Court itself raised the issue, the Court declined to strike it down.

p. 4

Legal principles established

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  • On a first appeal, the court re-evaluates the evidence and reaches its own conclusions, making allowance for not having seen or heard the witnesses
  • A suspension of an employee must have a contractual or statutory foundation; unilateral suspension without such authority constitutes breach of contract
  • Under common law the employer's obligation is to pay wages but not to offer work
  • At common law (before the Employment Act, 2007), an employer could dismiss without cause provided payment equivalent to the agreed notice period was made

Court orders

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  1. 1.The judgment of the trial Court set aside
  2. 2.In substitution, judgment entered for the Respondent for Kshs 458,810/- being wages from January 1999 to July 2002
  3. 3.Judgment for Kshs 10,670/- being one month's pay in lieu of notice, total Kshs 469,480/-
  4. 4.Each party to bear own costs both in the trial Court and in this Court

Authorities

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Legislation

  • Employment ActSection 44
  • Civil Procedure RulesNot specified

Cases cited (3)

  • Kamau v Mungai
    (2006) 1 KLR 150
  • Seascapes Limited v Development Finance Company of Kenya Limited
    (2009) eKLR
  • McKenzie v Smith
    (1976) IRLR 345
On appeal from
Chief Magistrate's Court (trial court)
Not stated
Jurisdiction invoked
First appeal from subordinate court (appeal transferred from High Court to Employment and Labour Relations Court by consent); specific provision not stated

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, "Board of Governors, St. Joseph’s Girls Secondary School Chepterit v Benjamin Kiptum Togom [2017] KEELRC 1969 (KLR)", Case Analysis (2017). Appeal No 1 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1969/eng@2017-09-29

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