Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in the judgment· [2018] KEELRC 870 (KLR)

Ayub Owino v Chairman of the Board of Management Lambwe Secondary School [2018] KEELRC 870 (KLR)

Employment and Labour Relations Court
25 October 2018
1,369 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The Claimant, employed as an accounts clerk from 1st February 1996 and earning Kshs.23,513 monthly at termination, sued for maximum compensation for unlawful termination and terminal benefits after the Respondent school suspended him on 12th November 2014 for alleged poor performance and absenteeism and terminated his employment in March 2015. The Respondent admitted the employment but denied unlawful termination, contending the lawful salary was Kshs.14,747 and counter-claiming Kshs.178,464 for alleged self-authorised overpayment over 39 months. The court framed two issues: whether the termination was for a valid reason through fair procedure, and the remedies due. It found the Respondent produced no charges or notice to show cause; the disciplinary minutes disclosed no specific charge to the Claimant and made no specific findings; and RW 1 conceded under cross-examination that the Principal approved the payroll including the Kshs.19,000 salary, defeating the misappropriation allegation. The Respondent thus failed to discharge its onus under sections 43, 45 and 47(5) of the Employment Act, 2007, and the termination breached section 41. Judgment was entered for the Claimant totaling Kshs.436,217.50: service gratuity of Kshs.223,375.50, maximum 12 months' compensation of Kshs.141,078, notice pay of Kshs.23,513, and arrear half salary of Kshs.48,305, with interest and costs. Claims for 19 years of underpayments and anticipated retirement income were dismissed for want of proof and lack of merit. The counter-claim is not addressed in the final orders.

Key legal issues

#
01

Validity of reason for termination

Holding

The Respondent failed to prove a valid reason for termination; no charges or notice to show cause were produced, and the salary the Claimant allegedly overpaid himself was approved by the Principal

Reasoning

Other than the suspension letter alleging negligence, the Respondent produced no charges or notice to show cause. The disciplinary minutes disclose no specific charge or finding. RW 1 conceded under cross-examination that the Principal approved the payroll including the Kshs.19,000 monthly salary, undermining the misappropriation allegation. The onus under sections 43, 45 and 47(5) was therefore not discharged.

p. 2
02

Fairness of procedure

Holding

The termination violated section 41 of the Employment Act; the Claimant was not told the specific charge he faced and the Board made no specific findings

Reasoning

The Executive Board minutes show the Claimant was summoned as a suspect, questioned generally, and never informed of the specific charge. No charges were read to him and no specific finding was made on the alleged negligence or salary increase. The court held the Claimant was denied a fair hearing in terms of section 41 of the Act.

p. 2
03

Remedies for wrongful and unfair termination

Holding

Claimant awarded one month's notice pay, service gratuity, arrear half salary for the suspension period, and maximum 12 months' compensation; underpayment and lost retirement income claims failed for want of proof

Reasoning

The court found the Claimant lost his job unlawfully after 19 years of diligent service, without terminal benefits or a certificate of service, justifying maximum compensation under section 49(1)(c) as read with 49(4). Gratuity was computed at 15 days' salary per completed year for 19 years. Underpayment and anticipated income claims failed for lack of proof and merit.

p. 3

Legal principles established

#
  • The employer bears the onus under sections 43, 45 and 47(5) of the Employment Act, 2007 to prove a valid reason for termination, and must establish a fair hearing under section 41
  • A disciplinary hearing without specific charges disclosed to the employee does not satisfy section 41 of the Employment Act
  • An employee who has served long and diligently and lost his job unlawfully and unfairly may be awarded the maximum 12 months' salary compensation under section 49(1)(c) as read with 49(4)

Court orders

#
  1. 1.Judgment entered in favour of the Claimant against the Respondent
  2. 2.Kshs.223,375.50 service gratuity
  3. 3.Kshs.141,078 compensation for wrongful and unfair termination
  4. 4.Kshs.23,513 notice pay
  5. 5.Kshs.48,305 arrear salary
  6. 6.Total award of Kshs.436,217.50
  7. 7.Interest at court rates from date of filing suit on gratuity, notice pay and arrear salary, and from date of judgment on compensation
  8. 8.Costs of the suit to the Claimant

Authorities

#

Legislation

  • Employment Act, 2007section 43
  • Employment Act, 2007section 45
  • Employment Act, 2007section 47(5)
  • Employment Act, 2007section 41
  • Employment Act, 2007section 49(1)(c)
  • Employment Act, 2007section 49(4)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ayub Owino v Chairman of the Board of Management Lambwe Secondary School [2018] KEELRC 870 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/870/eng@2018-10-25

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