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ELRCPartially AllowedNot stated in the judgment as provided· [2019] KEELRC 1019 (KLR)

Polycarp Shitakha Shilaho v Board of Management Musingu High School [2019] KEELRC 1019 (KLR)

Employment and Labour Relations Court of Kenya
16 July 2019
1,668 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled Musingu High School unfairly fired its bursar without valid reasons or a fair hearing, awarding him over Kshs.364,000.

What this practically means

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Executive summary

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The claimant, employed as School Bursar by the Board of Governors of Musingu High School from 1st March 2005, was asked by an unsigned handwritten note from the Principal (RW1) to hand over office to the Accountant. He sought formal clarification and was physically ejected from office on 31st January 2014, later suspended for insubordination and incompetence, and dismissed by letter dated 14th March 2014 for insubordination and misconduct. He sued claiming terminal benefits totalling Kshs.733,943. The respondent denied unfair dismissal, alleging insubordination, professional incompetence and gross misconduct. The court found bad blood between the claimant and RW1, who had been questioned over financial irregularities; the unsigned informal note did not constitute valid authority to hand over, and the claimant's refusal to comply with it and his inability to prepare financial records - because RW1 withheld documents - were wrongly treated as insubordination and incompetence. The particulars of the charges were never stated in the suspension or dismissal letters, and RW1 failed to show the claimant was given a chance to defend himself before the Board or that the auditor's report relied on was availed to him. The court found the dismissal substantively and procedurally unfair. It awarded four months' notice pay (Kshs.100,080) and gratuity for 9 years (Kshs.225,180) under the CBA, plus unpaid salary of Kshs.38,492.40, and dismissed the underpayments, leave pay and travel allowance prayers for want of proof. Judgment was entered for Kshs.364,752.40 with interest and costs to the claimant.

Key legal issues

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01

Validity of the reasons for dismissal

Holding

There were no valid reasons for the dismissal of the claimant

Reasoning

The claimant, a bursar of a sensitive financial office, was asked to hand over via an unsigned handwritten note from the Principal. His insistence on formal notification and formal handing over was treated as insubordination, and his inability to prepare financial documents - because the Principal failed to avail them - was treated as incompetence. RW1 could not explain the particulars of the charges, which were never stated in the suspension or dismissal letters despite the claimant's request.

p. 2
02

Procedural fairness of the dismissal

Holding

The dismissal was procedurally unfair as the claimant was not accorded a fair hearing before the Board

Reasoning

RW1's evidence that the claimant appeared before the Board and that 'the reasons given before were proved' did not state what the reasons were, nor whether the claimant was asked to defend himself or respond to the issues raised in the suspension letter. The auditor's report relied upon was never availed to the claimant nor its issues explained.

p. 3
03

Entitlement to remedies under the CBA

Holding

The claimant was entitled to four months' pay in lieu of notice and one month's salary per year worked as gratuity under the CBA between the respondent and the union

Reasoning

The claimant's letter of appointment subjected employment to terms of the CBA between the Ministry of Education and the union, and a CBA signed on 5th February 2013 provided for four months' notice pay for over 9 years of service and gratuity at one month's salary per year worked. The court applied the CBA terms, computing notice pay and gratuity on the last salary of Kshs.25,020.

p. 3

Legal principles established

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  • Underpayments are special damages subject to strict proof, which a claimant must establish with evidence
  • Section 41 of the Employment Act obliges the employer to give an employee an opportunity to defend himself against charges explained to him, and Section 43 requires the employer to prove the grounds of termination

Court orders

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  1. 1.Declaration that the dismissal of the claimant was unfair both substantively and procedurally
  2. 2.Award of Kshs.100,080 in lieu of notice (four months' salary at Kshs.25,020 per month)
  3. 3.Dismissal of the prayer for salary underpayments for want of strict proof
  4. 4.Award of Kshs.225,180 as gratuity (one month's salary per year worked for 9 years)
  5. 5.Dismissal of the prayers for leave pay and travel allowance
  6. 6.Award of Kshs.38,492.40 being salary for February up to 14th March 2014 while on suspension
  7. 7.Judgment entered for the claimant against the respondent in the total sum of Kshs.364,752.40
  8. 8.Interest at court rates on the salary component from date of filing suit and on the rest of the decretal sum from date of judgment
  9. 9.Respondent to pay the claimant's costs of the claim

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Education (Board of Governors) Order, 1964Not specified (referred to in the claimant's letter of appointment)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair termination and employment benefits (Employment Act, ss. 41 and 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, "Polycarp Shitakha Shilaho v Board of Management Musingu High School [2019] KEELRC 1019 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1019/eng@2019-07-16

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