Polycarp Shitakha Shilaho v Board of Management Musingu High School [2019] KEELRC 1019 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Validity of the reasons for dismissal
There were no valid reasons for the dismissal of the claimant
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.
Procedural fairness of the dismissal
The dismissal was procedurally unfair as the claimant was not accorded a fair hearing before the Board
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.
Entitlement to remedies under the CBA
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
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.
Legal principles established
#- 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
#- 1.Declaration that the dismissal of the claimant was unfair both substantively and procedurally
- 2.Award of Kshs.100,080 in lieu of notice (four months' salary at Kshs.25,020 per month)
- 3.Dismissal of the prayer for salary underpayments for want of strict proof
- 4.Award of Kshs.225,180 as gratuity (one month's salary per year worked for 9 years)
- 5.Dismissal of the prayers for leave pay and travel allowance
- 6.Award of Kshs.38,492.40 being salary for February up to 14th March 2014 while on suspension
- 7.Judgment entered for the claimant against the respondent in the total sum of Kshs.364,752.40
- 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.Respondent to pay the claimant's costs of the claim
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair termination and employment benefits (Employment Act, ss. 41 and 43)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.