Tobias Adem v BOM Koru Girls’ High School [2019] KEELRC 2355 (KLR)
The bottom line
#A Kenyan court upheld a teacher's dismissal for skipping classes and insubordination, awarding only unpaid NSSF deductions.
What this practically means
#Executive summary
#Key legal issues
#Validity of reason and fairness of procedure for dismissal
Dismissal was lawful and fair; claimant failed to prove his case on a balance of probabilities
The claimant was charged with specific disciplinary offences in a show cause letter dated 24th March 2016. His response of 5th April 2016 was found unsatisfactory and he failed to attend the disciplinary hearing scheduled for 13th April 2016. The board deliberated and dismissed him. The respondent therefore demonstrated valid reasons and gave the claimant an opportunity to be heard, discharging the onus under Sections 43, 45 and 47(5) of the Employment Act.
Entitlement to compensation and notice pay
Not entitled, dismissal having been lawful
Compensation for unlawful dismissal and payment in lieu of notice are contingent on a finding that the dismissal was wrongful. Having found valid reasons and fair procedure, the court held the claimant entitled to neither. The claims failed on the burden of proof.
Claims for underpayment and house allowance
Dismissed for lack of proof
The letter of appointment stated a salary of Kshs 15,000 per month on a three-year contract with option of renewal. The contract was silent on the claimant's qualification and category under the Teachers Service Commission (Remuneration of Teachers) Order 1997. The claimant, who became a graduate in 2015, did not discharge the onus of proving underpayment or entitlement to house allowance over and above the contracted salary.
Refund of NSSF dues deducted but not remitted
Claim succeeds; Kshs 10,440 awarded for 12 months
This was the only claim the court found merited. NSSF dues deducted from the claimant's salary for a period of 12 months were not remitted, entitling him to a refund of Kshs 10,440 with interest at court rates from the date of filing suit.
Legal principles established
#- Under Sections 107 and 108 of the Evidence Act as read with Section 47(5) of the Employment Act, the claimant bears the burden of proving wrongful dismissal, and the respondent then bears the onus of demonstrating a valid reason under Sections 43, 45 and 47(5).
- Failure to attend a scheduled disciplinary hearing, after an unsatisfactory response to a show cause letter, does not invalidate a dismissal effected after the board deliberated on the charges.
Court orders
#- 1.Dismissal of the entire suit except an award of Kshs 10,440 in respect of unpaid NSSF contributions
- 2.Award of Kshs 10,440 payable with interest at court rates from date of filing suit till payment in full
- 3.Claimant entitled to half (1/2) the costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes; Employment Act 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tobias Adem v BOM Koru Girls’ High School [2019] KEELRC 2355 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2355/eng@2019-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.