Ayub Owino v Chairman of the Board of Management Lambwe Secondary School [2018] KEELRC 870 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Validity of reason for termination
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
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.
Fairness of procedure
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
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.
Remedies for wrongful and unfair termination
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
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.
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.Judgment entered in favour of the Claimant against the Respondent
- 2.Kshs.223,375.50 service gratuity
- 3.Kshs.141,078 compensation for wrongful and unfair termination
- 4.Kshs.23,513 notice pay
- 5.Kshs.48,305 arrear salary
- 6.Total award of Kshs.436,217.50
- 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.Costs of the suit to the Claimant
- 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.