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ELRCPartially AllowedConsolidated Employment Causes (consolidated 29.9.2016), including Cause 1861 of 2016· [2020] KEELRC 654 (KLR)

Thomas Oundo Pamba & 6 others v Beverly Schools of Kenya Limited [2020] KEELRC 654 (KLR)

Employment and Labour Relations Court
23 July 2020
OMONESMUS N. MAKAU
2,977 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled seven teachers were unfairly dismissed because the school proved neither a valid reason nor a fair hearing before terminating them.

What this practically means

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Executive summary

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Seven claimants, teachers at the respondent school, brought separate unfair termination claims consolidated on 29.9.2016. They alleged the respondent failed to pay salaries for June, July and part of August 2016, did not remit tax, pension (Octagon) and E-Kenya Co-operative deductions, and terminated them by letters handed over at a Nairobi café on 18.8.2016 without any hearing. They sought declarations, terminal dues, compensatory damages, release of withheld belongings, certificates of service and costs. The respondent denied unfair dismissal, pleaded misconduct (a sit-down strike and unauthorised exit) and warned of prior warnings, but did not adduce evidence at trial; only the claimants testified and filed submissions. The court framed two issues: whether the dismissals were unfair and unlawful, and whether the claimants were entitled to the orders sought. Applying sections 41, 43 and 45 of the Employment Act, and guided by Mbaru J in Mary Chemweno Kiptui v Kenya Pipeline, the court held the respondent failed to prove a valid and fair reason or a fair procedure, and the termination was unfair and unlawful. The court declared the dismissals unfair, awarded one month's salary in lieu of notice and 2 months' salary compensation under section 49 (except Muthoka, who did not claim those heads), salary arrears, costs and interest, and certificates of service. Service pay and the claims for pension and co-operative refunds were not granted.

Key legal issues

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01

Whether the dismissals were substantively and procedurally unfair

Holding

The termination was unfair and unlawful: the employer pleaded misconduct (illegal strike, leaving without permission) but adduced no evidence of a valid and fair reason, and no hearing was accorded to the claimants contrary to section 41.

Reasoning

Section 45(2) requires the employer to prove both valid reason and fair procedure. Although the respondent pleaded that the claimants staged a sit-down strike and exited without authority, she did not give evidence or call witnesses. Cw1's uncontroverted evidence was that no hearing took place. The court adopted Radido J's checklist in Mwachanya and Mbaru J's holding in Kiptui on sections 41 and 45.

p. 5
02

Remedies: notice pay, compensation, salary arrears and service pay

Holding

Claimants entitled to one month's salary in lieu of notice, 2 months' salary as compensation under section 49 (save Muthoka who did not claim them), and salary arrears; service pay refused.

Reasoning

The contracts provided for one month's notice after probation. Compensation was capped at 2 months because the claimants had served a short period on fixed-term contracts. Salary arrears for June, July and 18 days of August 2016 were proved. Service pay was unavailable under section 35(6) as the claimants were NSSF and pension beneficiaries and did not prove non-remittance.

p. 6

Legal principles established

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  • Under sections 43 and 45 of the Employment Act, the employer bears the burden of proving on a balance of probability both a valid and fair reason for termination and that a fair procedure was followed; failure of the employer to adduce evidence is fatal to its defence.
  • Procedural fairness under section 41 requires an explanation of reasons to the employee in a language they understand, presence of a representative, and a hearing of the employee's representations before termination.

Court orders

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  1. 1.Declaration that the Respondent's dismissal of the Claimants from employment was unfair and unlawful
  2. 2.Award of one month's salary in lieu of notice to each claimant (except Elizabeth Ndinda Muthoka who did not pray for it)
  3. 3.Award of 2 months' salary as compensation for unfair termination under Section 49 (except Elizabeth Ndinda Muthoka)
  4. 4.Award of salary arrears for June, July and 18 days in August 2016 to each claimant
  5. 5.Total awards: Thomas Oundo Pamba Kshs 187,167/=; Elizabeth Ndinda Muthoka Kshs 70,769.23/=; Geoffrey Wanga Kachisa Kshs 195,566/=; Evans Otieno Kshs 203,666/=; Jacob Wamalwa Werunga Kshs 142,100/=; Juliana Ndanu Muendo Kshs 130,833/=; Vincent Birundu Omurwa Kshs 142,100/=
  6. 6.Awards subject to statutory deductions, plus costs and interest at court rates
  7. 7.Claimants to be issued with Certificates of Service under section 51 of the Employment Act

Authorities

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Legislation

  • Employment ActSection 41(1) and (2)
  • Employment ActSection 42(1)
  • Employment ActSection 43
  • Employment ActSection 44(3) and (4)
  • Employment ActSection 45(2) and 45(5)
  • Employment ActSection 40(f)
  • Employment ActSection 35(6)
  • Employment ActSection 49
  • Employment ActSection 5(7)(c)
  • Employment ActSection 51
  • Constitution of KenyaArticle 47(1)
  • Constitution of KenyaArticle 10

Cases cited (4)

  • Alphonce Maghanga Mwachanya vs. Operation 680 Limited
    Industrial Cause No. 146 of 2012
  • Kenneth Njiru Njorani vs. Dodhia Packaging Limited
  • Lilian Nyaboke Nyaribo vs. Wireless Innovations Nairobi Limited
  • Mary Chemweno Kiptui –v- Kenya Pipeline Company Limited
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (sections 41, 43, 45, 49, 51 applied); no express constitutional/statutory basis stated

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, "Thomas Oundo Pamba & 6 others v Beverly Schools of Kenya Limited [2020] KEELRC 654 (KLR)", Case Analysis (2020). Consolidated Employment Causes (consolidated 29.9.2016), including Cause 1861 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/654/eng@2020-07-23

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