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ELRCPartially AllowedCause No. 1966 of 2011· [2018] KEELRC 430 (KLR)

Siprose Atieno Mulama v Board of Governors Ngara Girls High School & another [2018] KEELRC 430 (KLR)

Employment and Labour Relations Court of Kenya
14 December 2018
MOMaureen Onyango
1,920 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 a school bursar's dismissal unfair because her employer had no proven reason and never gave her a hearing.

What this practically means

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Executive summary

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The claimant, employed as School Bursar by the 1st respondent from 1st April 2003, was sent on compulsory leave on 23rd June 2009, extended twice, then given off-duty days, annual leave, and interdiction before termination by letter dated 18th May 2010 on grounds of poor performance. She claimed gratuity, notice pay, accumulated leave, salary arrears, travel allowance, withheld salary and compensation for unfair termination; the respondents denied unfairness and counter-claimed for Kshs.79,404. The court framed two issues: whether the termination was unfair and whether the reliefs were due. It found the Board's decision was driven by lack of trust rather than proved valid reason, and that the claimant was never given a hearing on the grounds for which she was terminated. The court held the termination unfair both substantively and procedurally under Sections 41, 43 and 45 of the Employment Act. It awarded three months' notice pay of Kshs.99,255 (as resolved in the Board's minutes), withheld salary of Kshs.103,576 plus Kshs.8,963.30 for May 2010, admitted sums of Kshs.2,000 and Kshs.2,757, and maximum compensation of Kshs.397,020. Gratuity and accumulated leave claims failed for want of evidence. After deducting Kshs.97,390 paid to Elimu SACCO and Kshs.24,957.90 PAYE, the balance awarded was Kshs.491,304.30. The respondents were ordered to pay costs, with interest on withheld salary from filing suit and on the balance from judgment. Judgment was delivered at Nairobi on 14th December 2018 by Lady Justice Maureen Onyango.

Key legal issues

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01

Whether the termination of the claimant's employment was unfair

Holding

The termination was unfair both substantively and procedurally

Reasoning

The court reviewed the sequence of compulsory leave, extensions, off-duty days, interdiction and termination. The Board's minutes showed the decision was driven by lack of trust rather than proved misconduct. The claimant was never given a hearing on the grounds on which she was ultimately terminated, contrary to Section 41, and the employer failed to prove a valid reason under Section 43. Termination was therefore unfair under Section 45.

p. 4
02

Whether the claimant is entitled to the reliefs sought

Holding

Partially: notice pay, withheld salary, admitted allowances and maximum compensation were awarded; gratuity and accumulated leave were refused

Reasoning

The court awarded three months' notice pay because the Board's own minutes resolved to pay it. Withheld half salary from September 2009 to May 2010 was awarded. Admitted sums for leave travel allowance and salary deduction refund were allowed. Maximum compensation was granted considering the protracted and unfair handling of the claimant. Gratuity and accumulated leave failed for want of proof.

p. 4

Legal principles established

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  • For a termination to be fair, an employer must prove both a valid reason (Section 43) and fair procedure (Section 41) under the Employment Act
  • Termination without a hearing on the grounds for which employment is terminated is procedurally and substantively unfair

Court orders

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  1. 1.Declaration that the termination of the claimant's employment was unfair
  2. 2.Award of three months' salary in lieu of notice of Kshs.99,255
  3. 3.Award of withheld salary of Kshs.103,576 from September 2009 to April 2010 and Kshs.8,963.30 from 1st to 18th May 2010
  4. 4.Maximum compensation for unfair termination of Kshs.397,020
  5. 5.Payment of admitted sums of Kshs.2,000 leave travel allowance and Kshs.2,757 refund of salary deduction
  6. 6.Deduction from total award of Kshs.97,390.0 paid to Elimu SACCO and Kshs.24,957.90 paid as PAYE, leaving a balance of Kshs.491,304.30
  7. 7.Respondents to pay the claimant's costs
  8. 8.Interest on withheld salary from date of filing suit; interest on the rest from date of judgment

Authorities

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Legislation

  • Employment ActSection 45(1) and (2)
  • Employment ActSection 43
  • Employment ActSection 41
  • Employment ActSection 45(4)(b)

Cases cited (2)

  • Moses Kaunda Moro v CMC Motors Group Ltd
    [2013] eKLR
  • Onesmus Maroko v Cooperative Bank of Kenya Ltd
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 41, 43, 45) - first-instance employment cause

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, "Siprose Atieno Mulama v Board of Governors Ngara Girls High School & another [2018] KEELRC 430 (KLR)", Case Analysis (2018). Cause No. 1966 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/430/eng@2018-12-14

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