Paul Mutuku Mulwa v Board of Management Mbooni Boys High School [2020] KEELRC 752 (KLR)
The bottom line
#A Kenyan court awarded a wrongfully dismissed watchman over Kshs. 147,000 but sent his workplace injury claim to a different legal forum.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant resigned or was constructively dismissed
The claimant was constructively dismissed; the alleged resignation was not proved
The respondent did not call any witness, so the alleged resignation was not proved on a balance of probability. The claimant's unrebuted evidence that his salary was stopped and another person employed to replace him stood, corroborated by defence counsel's admission that the claimant was dismissed for a valid reason.
Whether the dismissal was substantively and procedurally fair
There was a valid reason (misconduct/desertion and insubordination) but the procedure was unfair for want of a hearing
The letter of 16.7.2013 pointed to misconduct, justifying dismissal substantively. However, although the letter warned of disciplinary measures, the claimant was never invited to a hearing in the company of a union official as required by section 41 of the Employment Act, and the respondent adduced no evidence of compliance.
Jurisdiction over WIBA compensation claim
The court lacks primary jurisdiction over WIBA claims and referred the claim to the Director under WIBA
At the time of filing, claims could be filed in court following the High Court decision declaring section 52 of WIBA unconstitutional, but the Court of Appeal in Attorney General v Law Society of Kenya reversed that decision, leaving the ELRC with appellate jurisdiction only, as upheld by the Supreme Court in November 2019.
Accrued leave and unremitted NSSF deductions
Awarded Kshs. 57,876.90 for 198 accrued leave days and Kshs. 6,400 for unremitted NSSF deductions
The respondent did not rebut the leave claim, which computed to 198 days at the monthly salary of Kshs. 7,600. The gaps in the NSSF statement represented 32 months of Kshs. 200 deductions each, of which the court took judicial notice.
Legal principles established
#- The Employment and Labour Relations Court enjoys only appellate, not primary, jurisdiction over WIBA compensation claims following Attorney General v Law Society of Kenya
- Termination is unfair where the employer fails to prove a valid and fair reason and that fair procedure was followed (section 45(2), Employment Act)
- Before termination on grounds of misconduct, an employer must explain the reason to the employee in the presence of another employee or union official and consider representations (section 41, Employment Act)
Court orders
#- 1.Declaration that the dismissal was unlawful
- 2.One month salary in lieu of notice of Kshs. 7,600
- 3.Compensation of 10 months' salary being Kshs. 76,000 for unfair and unlawful dismissal
- 4.Kshs. 57,876.90 for accrued leave
- 5.Kshs. 6,400 for unremitted NSSF deductions
- 6.Total judgment of Kshs. 147,876.90 less statutory deductions
- 7.Costs of the suit plus interest at court rates from the date of judgment
- 8.The WIBA claim referred to the Director envisaged under WIBA for consideration
- Jurisdiction invoked
- Section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paul Mutuku Mulwa v Board of Management Mbooni Boys High School [2020] KEELRC 752 (KLR)", Case Analysis (2020). Cause No 842 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/752/eng@2020-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.