Sylvester Kiprono Kurgat & 2 others v Riara Group of Schools Limited [2019] KEELRC 1364 (KLR)

The Respondent alleged the Claimants incited colleagues to boycott uniforms, but RW1 conceded in cross-examination that he had no minutes of the alleged disciplinary meeting, no text message evidence, and no proof that the Claimants incited anyone. Under Sections 43 and 45 the employer must prove valid reason and fair procedure; under Section 41 the employee must be heard. No disciplinary process was demonstrated, so the terminations failed the statutory tests.

The Claimants worked beyond 8 hours per day, as indicated in their appointment letters, and payslips showed no overtime payment until the item was introduced in 2013. The court found the payslips corroborated non-payment and awarded overtime computed at the claimed hourly rates for a 3-year period, rather than the full service period claimed.

The Claimants argued they signed the declaration forms under duress as an employer strategy to escape liability. The court accepted the reasoning in Dennis Kipngetich Koech v MKPPA Kenya Limited that a discharge declaration cannot override statutory entitlements, and proceeded to award remedies despite the declarations and receipts of final dues produced by the Respondent.

Section 35(6)(d) of the Employment Act excludes employees contributing to NSSF from service pay, and the Claimants were NSSF members. The appointment letters stated salary was inclusive of all allowances, defeating the house allowance claim. Notice pay of one month's salary was awarded to each Claimant as part of the terminal dues.