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ELRCDismissedNot stated in the judgment as provided· [2018] KEELRC 499 (KLR)

Susan Mbithe Kitumu v BOM DEB Primary School Karatina [2018] KEELRC 499 (KLR)

Employment and Labour Relations Court
20 November 2018
NMNzioki wa Makau
944 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, employed as a cook from 15th January 2009 at a monthly salary that rose from Kshs. 5,500 to Kshs. 7,500, sued the Respondent for unlawful and unfair dismissal, alleging termination without notice on 28th July 2016 after returning from sick off and bereavement leave following her father-in-law's death. She sought compensation for unlawful dismissal, annual leave for seven years' service, and costs. The Respondent denied dismissing her, pleaded due procedure under the Employment Act, and raised the Government Proceedings Act. The Claimant relied on Wilfred Bukachi Opwaka v Ready Consultancy Company and Boniface Wambugu Wachira v Diocese of Meru Trustees, invoking Sections 35(1)(c), 41(1) and 37 of the Employment Act and Section 1(a) of the Fourth Schedule of the Basic Education Act, 2013 on the Respondent's capacity to be sued. The Respondent relied on Sections 44(1) and (3) and 41 of the Employment Act and on Kazungu Kenga Katana v Ready Consultancy Co. Ltd and Gilbert Kipngeno Sang v Ukwala Supermarket, contending the Claimant absconded for 15 days, wrote an apology letter, then went to the Labour Office, resulting in payment of salary in lieu of notice. The court found there was no dismissal: the Claimant left her workplace to report a labour dispute, was the author of her own misfortune, and failed to prove her case on a balance of probabilities. The suit was dismissed with no order as to costs.

Key legal issues

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01

Whether the Claimant was dismissed from employment

Holding

There was no dismissal; the Claimant left her workplace and went to report a labour dispute at the Labour Office

Reasoning

The court found that the Claimant took sick leave, was absent following her father-in-law's death, was asked to write an apology letter and a letter seeking re-employment, but instead went to the Labour Office. The Labour officer sought payment of salary in lieu of notice, which was paid. The court treated this sequence as a self-initiated exit rather than a termination by the Respondent.

p. 2
02

Whether any termination complied with Section 41 of the Employment Act (procedure)

Holding

Section 41 hearing obligations were not breached because the Claimant's own conduct prevented the Respondent from hearing her

Reasoning

The Respondent argued the Claimant absconded for 15 days and then lodged a labour complaint before the BOM could deliberate, leaving no room for a Section 41 meeting. The court accepted that by leaving to report a labour dispute, the Claimant did not permit herself to be heard by the Respondent, and was the author of her own misfortune.

p. 2
03

Standard of proof applicable to the Claimant's claims

Holding

The Claimant failed to prove her case on a balance of probabilities

Reasoning

The court applied the civil standard of a balance of probabilities and found the Claimant had not discharged the evidential burden, particularly regarding whether she was dismissed and whether she was permitted time off after her father-in-law's death, against the Respondent's account of absconding and self-reporting to the Labour Office.

p. 2

Legal principles established

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  • An employee who leaves her workplace to pursue a labour-office complaint forfeits the employer's obligation to hear her under Section 41 of the Employment Act
  • A claimant in an unfair termination suit bears the burden of proving the case on a balance of probabilities

Court orders

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  1. 1.The Claimant's suit is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Employment ActSection 35(1)(c)
  • Employment ActSection 37
  • Employment ActSection 41 and Section 41(1)
  • Employment ActSection 44(1) and (3)
  • Basic Education Act, 2013Section 1(a) of the Fourth Schedule
  • Government Proceedings ActNot specified

Cases cited (4)

  • Wilfred Bukachi Opwaka v Ready Consultancy Company
    [2012] eKLR
  • Boniface Wambugu Wachira v Diocese of Meru Trustees (Registered) T/a St. Theresa Mission Hospital – Kiirua
    [2017] eKLR
  • Kazungu Kenga Katana v Ready Consultancy Co. Ltd
    [2015] eKLR
  • Gilbert Kipngeno Sang v Ukwala Supermarket
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment dispute under the Employment Act (not expressly cited with a specific Article/section in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Susan Mbithe Kitumu v BOM DEB Primary School Karatina [2018] KEELRC 499 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/499/eng@2018-11-20

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