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ELRCPartially AllowedCause filed 19 January 2015 (Issue in Dispute: Unlawful termination and refusal by the Respondent to pay terminal benefits)· [2018] KEELRC 2043 (KLR)

Leonard Kahuthu Kibue v St. Hannah’s Preparatory School & Philip K. Ndehi [2018] KEELRC 2043 (KLR)

Employment and Labour Relations Court
11 May 2018
1,159 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

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A Nairobi court ruled a school unfairly dismissed its reliever teacher, awarding him Kshs 144,000 because there was no written contract or proper termination process.

What this practically means

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Executive summary

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Leonard Kahuthu Kibue sued St. Hannah's Preparatory School and Philip K. Ndehi before the Employment and Labour Relations Court in Nairobi, claiming Kshs 504,000/- for unlawful termination and unpaid terminal benefits. The Respondents contended that he was engaged on a work-rate basis as a reliever teacher with no prospect of permanent employment and that he voluntarily left in November 2013. The Court identified four questions: the nature of the contract, whether the Claimant deserted or was unfairly dismissed, entitlement to December 2013 salary, and appropriate remedies. On the contract, the Court held that since the Claimant served more than 3 months, section 9 of the Employment Act, 2007 required a written contract; none existed, and under section 10(7) the contract was of indefinite duration despite his reliever status. On desertion, the Court held the burden lay on the Respondents, and even if the Claimant missed duty, no disciplinary action under sections 41 and 44 was shown; he did not abscond. The Court preferred the Claimant's account that his contract was verbally brought to an end by the Human Resources Officer in January 2014, and since he was paid monthly, termination without written notice under section 35(1)(c) or a hearing under section 41 was unfair. He was entitled to December 2013 salary, the plea that relievers earn no holiday pay being contradicted by evidence of payment for April and August 2013. The Court awarded one month's pay in lieu of notice (Kshs 36,000/-), December 2013 salary (Kshs 36,000/-), and compensation of two months' wages (Kshs 72,000/-), totalling Kshs 144,000/-, plus costs of Kshs 30,000/-, against the 1st Respondent.

Key legal issues

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01

Nature of the employment contract

Holding

The contract was of an indefinite duration, notwithstanding the reliever status of the Claimant.

Reasoning

The Employment Act recognises oral and written contracts. Where employment exceeds 3 months, section 9(1) requires the contract to be in writing. The Respondent pleaded a 6-month probation yet never reduced the contract into writing. Invoking section 10(7), the Court inferred an indefinite-duration contract from the absence of a written contract.

p. 2
02

Whether the Claimant deserted duty

Holding

The Claimant did not abscond from work.

Reasoning

The Respondents bore the burden of proving desertion. Even assuming the Claimant failed to report for mid-December duty, that absence would be misconduct requiring disciplinary action under sections 41 and 44 of the Employment Act. No such action was shown to have been taken, so desertion was not established.

p. 2
03

Whether the termination was unfair

Holding

The Claimant's contract was unfairly terminated.

Reasoning

The Court preferred the Claimant's account that the contract was verbally brought to an end when the Human Resources Officer told him his services were no longer required. Being paid monthly, he was entitled to written notice under section 35(1)(c) and a hearing under section 41; neither was given, rendering the termination unfair.

p. 3
04

Entitlement to December 2013 salary

Holding

The Claimant was entitled to December 2013 salary as of right.

Reasoning

The Claimant was only informed in January 2014 that his services were no longer required, so December 2013 salary was due. The contention that a reliever teacher was not entitled to holiday pay was misplaced, since evidence showed he was paid for the April and August 2013 school holidays.

p. 3
05

Appropriate remedies

Holding

One month's pay in lieu of notice, December 2013 salary, and compensation equivalent of 2 months' wages were awarded.

Reasoning

Having found no notice was issued, the Court awarded one month's pay in lieu of notice (Kshs 36,000/-). December 2013 salary was due as of right. Considering the roughly one year of service, compensation of 2 months' wages (Kshs 72,000/-) was deemed appropriate and fair, totalling Kshs 144,000/-.

p. 3

Legal principles established

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  • An employee who serves for more than 3 months was entitled to a written contract; absent a written contract, section 10(7) of the Employment Act permits the Court to find the contract was of indefinite duration.
  • The party asserting desertion bears the burden of demonstrating it.
  • Termination without written notice under section 35(1)(c) and without a hearing under section 41 of the Employment Act is unfair termination.

Court orders

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  1. 1.The 1st Respondent to pay the Claimant pay in lieu of notice of Kshs 36,000/-
  2. 2.The 1st Respondent to pay the Claimant December 2013 salary of Kshs 36,000/-
  3. 3.The 1st Respondent to pay the Claimant compensation equivalent of 2 months wages of Kshs 72,000/-
  4. 4.Total award of Kshs 144,000/-
  5. 5.Claimant to have costs of Kshs 30,000/-

Authorities

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Legislation

  • Employment Act, 2007section 9(1)
  • Employment Act, 2007section 9
  • Employment Act, 2007section 10(7)
  • Employment Act, 2007section 35(1)(c)
  • Employment Act, 2007section 41
  • Employment Act, 2007section 44
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 over a dispute of unlawful termination and refusal to pay terminal benefits

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Leonard Kahuthu Kibue v St. Hannah’s Preparatory School & Philip K. Ndehi [2018] KEELRC 2043 (KLR)", Case Analysis (2018). Cause filed 19 January 2015 (Issue in Dispute: Unlawful termination and refusal by the Respondent to pay terminal benefits). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2043/eng@2018-05-11

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