David Muguna v Board of Management Gibea Jerusalem Academy [2019] KEELRC 618 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the claimant's employment was unfair
No unfair termination was established; the claimant's failure to produce proof of the burial justified the respondent's action, including summary dismissal under section 44 of the Employment Act, 2007.
The court held that compassionate leave is good cause for absence, but the employer may demand proof. Drawing an analogy with maternity leave under section 29 of the Employment Act, where proof such as a medical certificate is required, the employer could similarly require proof of the need for compassionate leave. The claimant said burial permits are kept by parents, but the court found he could have secured the evidence with similar ease. Having failed to produce the required proof, he could not blame the respondent for frustrating his own employment, leaving no basis for an unfair termination claim.
Whether the May 2016 wages were due
The wage due for May 2016 (26 days) was awarded because the respondent produced no work records evidencing payment after 26 May 2016.
The respondent did not produce any employment work records. Under sections 10(6) and (7) read with section 20 of the Employment Act, 2007, such records would have been sufficient proof of payments made. In their absence, the court found the May 2016 wage for 26 days due and awarded it, though the judgment states the figure as Ksh.14,740.00 in the analysis and Ksh.14,700.00 in the final orders.
Whether annual leave, house allowance and severance pay claims were due
All declined; school breaks covered leave, the wage paid exceeded the applicable minimum wage, and severance pay is only due in a redundancy.
The respondent, being an educational institution, provides breaks in April, August and December, so claiming annual leave over and above these would be unjust enrichment. The claimant's wage of Ksh.17,000.00 exceeded the minimum wage for Moi's Bridge under Legal Notice No.117 of 1st May 2015, making a house allowance claim unjust enrichment. Severance pay under section 40 of the Employment Act applies only to redundancy, which this case was not.
Legal principles established
#- Compassionate leave is a foreseeable good cause for absence from work, but the employer may demand proof of the need for it, and where proof is not readily available the employee should reasonably request time to secure it.
- Where an employee on leave fails to prove the need for the absence, the employer may resort to summary dismissal under section 44 of the Employment Act, 2007.
- Unremitted statutory deductions such as NHIF are payable to the statutory body and not to the employee, so an employee cannot claim such monies directly.
Court orders
#- 1.The claims made are dismissed save for payment of the wage due for May, 2016 at Ksh.14,700.00
- 2.The said sum to be paid within 30 days from the date of judgment, failing which to attract interest at court rates until paid in full
- 3.Such monies subject to the provisions of section 49(2) of the Employment Act, 2007
- 4.Each party shall bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment cause)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ondimu & another v Commissioner of Police & 3 others[2024] KESC 46 (KLR)9 Aug 2024
Cite this brief
#Cite this brief
Caselaw, "David Muguna v Board of Management Gibea Jerusalem Academy [2019] KEELRC 618 (KLR)", Case Analysis (2019). Cause No. 431 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/618/eng@2019-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.