Board of Governors, St. Joseph’s Girls Secondary School Chepterit v Benjamin Kiptum Togom [2017] KEELRC 1969 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Applicable statute
The Employment Act, 2007 did not apply to a cause of action arising in 1998-2002
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 The Court held the claim fell to be determined under the repealed Employment Act, common law and contractual provisions.
Suspension without pay
The unilateral suspension without pay from January 1999 breached the contract as it had no statutory or contractual foundation
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.
Yearly increments
The award of yearly increments was erroneous
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.
Pay in lieu of notice
One month's salary in lieu of notice was reasonable where no agreed notice period was proved
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.
Competence of the Appeal
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
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.
Legal principles established
#- 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
#- 1.The judgment of the trial Court set aside
- 2.In substitution, judgment entered for the Respondent for Kshs 458,810/- being wages from January 1999 to July 2002
- 3.Judgment for Kshs 10,670/- being one month's pay in lieu of notice, total Kshs 469,480/-
- 4.Each party to bear own costs both in the trial Court and in this Court
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.