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ELRCPartially AllowedCause No 850 of 2016· [2020] KEELRC 1566 (KLR)

Daniel M. Kasekya v Board of Governors, St Augustine Preparatory School [2020] KEELRC 1566 (KLR)

Employment and Labour Relations Court
21 February 2020
JRJames Rika
1,412 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 a school bus driver was unfairly terminated because the school couldn't prove its misconduct claims with real evidence.

What this practically means

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Executive summary

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The Claimant, employed as a School Bus Driver from 1st May 2008 at a monthly salary of Kshs. 10,827, claimed his employment was unfairly and unlawfully terminated on 3rd September 2014. He sought notice pay, pro-rata leave, underpayment of salary, overtime, salary increments, 12 months' compensation for unfair termination, a declaration, a certificate of service, costs and interest, totalling Kshs. 914,171. The Respondent asserted the Claimant fraudulently used the school bus for personal gain and deserted employment when confronted. The hearing proceeded before Hon. Justice Linnet Ndolo, who recused herself with the parties' concurrence; judgment was delivered by Judge James Rika on the agreed record. The Court found the Claimant was suspended indefinitely by a letter dated 3rd September 2014, ostensibly pending investigation of misuse of the school bus, but no investigation followed and no findings were produced. Serious allegations of a fatal accident at Taru were unsupported by any police extract, abstract or charges. The allegations were never reduced to a specific employment offence or tested at a disciplinary hearing, and suspension was never lifted, with no termination letter issuing. Termination was held unfair for want of fair procedure and valid reason. However, the claims for underpayment, overtime, salary increments and pro-rata leave failed for want of evidence. Considering the Claimant's disciplinary record of warnings and prior allegations, the Court awarded only 3 months' salary as compensation plus one month's notice, totalling Kshs. 43,308, ordered a certificate of service, and made no order on costs and interest. Judgment dated 21st February 2020 at Mombasa.

Key legal issues

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01

Whether termination was procedurally fair and for valid reason

Holding

Termination was unfair; allegations were unsupported by evidence and no disciplinary hearing was held

Reasoning

The show cause letter alleged a fatal accident at Taru, but the Respondent produced no police Occurrence Book extract, abstract, or charges. The complaints predated the 2014 events. Instead of a disciplinary hearing, the Respondent imposed indefinite suspension which was never lifted and no termination letter ever issued. Termination therefore lacked both fair procedure and valid reason.

p. 2
02

Quantum of compensation for unfair termination

Holding

Equivalent of 3 months' salary awarded despite unfair termination, having regard to the Claimant's disciplinary record

Reasoning

Although termination was unfair, the Claimant had warnings in his file, had conceded improper driving in 2012, and was subject to serial accusations about his conduct. The Court found his employment relationship would likely have ended prematurely, justifying a reduced award of 3 months' gross salary rather than the 12 months claimed.

p. 3

Legal principles established

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  • An employer must support allegations of misconduct with evidence and subject the employee to a disciplinary hearing before termination; bare allegations and indefinite suspension do not suffice.
  • Termination without fair procedure and valid reason is unfair.

Court orders

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  1. 1.Declaration that termination was unfair
  2. 2.The Respondent shall pay to the Claimant notice at Kshs. 10,827 and compensation at Kshs. 32,481, total Kshs. 43,308
  3. 3.Certificate of Service to issue
  4. 4.No order on the costs and interest

Authorities

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Legislation

  • Legal Notice on Wage Amendment Orderdated 20th May 2015
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court

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, "Daniel M. Kasekya v Board of Governors, St Augustine Preparatory School [2020] KEELRC 1566 (KLR)", Case Analysis (2020). Cause No 850 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1566/eng@2020-02-21

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