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ELRCPartially AllowedCause No. 89 of 2016· [2018] KEELRC 1973 (KLR)

Paul Kiplangat Chepkwony v Kabianga High School & another [2018] KEELRC 1973 (KLR)

Employment and Labour Relations Court of Kenya
16 May 2018
1,540 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 Kabianga High School unlawfully fired its cook, awarding him 12 months' salary because the school never explained or justified the dismissal.

What this practically means

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Executive summary

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The claimant, employed as a Cook by Kabianga High School from 1st January 1997, sued for wrongful, unfair and unlawful termination following a suspension by the Special Committee of the Board of Governors on 9th October 2008 for 'serious allegations' and a subsequent letter of termination dated 11th September 2009. He sought three months' salary in lieu of notice, half salary for six months, one year's compensation and unpaid leave days. The respondents filed a memorandum of response denying the claim, arguing the claimant had appeared before the Special Committee, satisfying section 41(1) of the Employment Act, 2007, and relied on authorities on suspension, including Donald C. Avude v Kenya Forest Service and Paul Ngeno v Pyrethrum Board of Kenya Ltd, and on section 36 of the Act. The claimant filed no submissions. The court framed three issues: whether the termination was wrongful, unfair and unlawful; entitlement to relief; and costs. It held the suspension letter disclosed no proceedings or reasons, and that the respondents tendered no evidence of the grounds for termination, amounting to a transgression of sections 41, 42 and 43 of the Employment Act. Mere denial was not a substantial defence. The claim was allowed in part: 12 months' salary (Kshs.70,848.00) as compensation for unlawful termination; a certificate of service within 30 days; and costs to the respondents assessed at Kshs.48,000.00. Prayers for notice pay were found already satisfied and the leave claim unproven.

Key legal issues

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01

Whether the termination of the claimant's employment was wrongful, unfair and unlawful

Holding

Yes - the termination was unlawful for want of substantive and procedural fairness under sections 41, 42 and 43 of the Employment Act, 2007.

Reasoning

The court found the suspension letter of 9th October 2008 did not disclose any proceedings or reasons, and the respondents tendered no evidence of why or how the employment was terminated. Mere denial is not a substantial defence. The respondents even failed to justify the relief they had themselves paid at termination.

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02

Whether the claimant is entitled to the relief sought

Holding

Partially - compensation of 12 months' salary awarded; notice pay already paid; unproven leave claim refused.

Reasoning

The court noted the respondents themselves had paid three months' salary in lieu of notice and half salary for six months per the termination letter, so those prayers were satisfied. The leave days claim was not proven. Compensation for unlawful termination was awarded at 12 months' salary, plus a certificate of service.

p. 3

Legal principles established

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  • Mere denial of a claim does not amount to a substantial defence; an employer must demonstrate and communicate reasons for termination.
  • Failure to disclose reasons for termination and to follow procedure violates sections 41, 42 and 43 of the Employment Act, 2007.

Court orders

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  1. 1.12 months salary as compensation for unlawful termination of employment of Kshs.70,848.00
  2. 2.Respondents to issue a Certificate of Service to the claimant within thirty (30) days
  3. 3.Costs of the claim to be met by the respondents
  4. 4.Costs of the claim assessed at Kshs.48,000.00
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (fair termination claims, ss. 36, 41, 42, 43)

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, "Paul Kiplangat Chepkwony v Kabianga High School & another [2018] KEELRC 1973 (KLR)", Case Analysis (2018). Cause No. 89 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1973/eng@2018-05-16

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