Josephine Nzau Nzilu v Board of Management Rasul Al Amin Preparatory School [2020] KEELRC 1641 (KLR)
The bottom line
#A Kenyan school's dismissal of its cook was ruled unfair because it skipped the written notice and fair disciplinary process required by law.
What this practically means
#Executive summary
#Key legal issues
#Underpayment of salary
Claim rejected
The Claimant merely alluded to Wage Orders in her List of Documents but did not attach them. There was no reference to Wage Orders for 2009-2010, and no Gazette Notices were exhibited. She therefore failed to establish what she was paid and what she ought to have been paid in accordance with the Wage Orders.
Annual leave for 16 years
Claim rejected
Schools close three times a year, with an extended vacation of nearly two months in November and December. Non-teaching staff are expected to utilise annual leave during school vacation. It is not reasonable to compel the employer to pay leave in arrears for a period during which the Claimant did not work continuously.
Procedural fairness of termination
Termination unfair
Multiple accusations led to dismissal, but none was specifically put to the Claimant in writing through a notice to show cause. There were no charges, no structured disciplinary forum, no attendance register, and no minutes of the Board exhibited. The employer failed to discharge its obligations under Sections 41, 43 and 45 of the Employment Act 2007.
Remedies for unfair termination
12 months' compensation and one month's notice pay awarded
The Claimant worked 17 years with a fairly unblemished record, did not contribute significantly to the dismissal, and received no terminal benefits. Her age, remaining working life and efforts to secure comparable employment were not disclosed. Compensation equivalent to 12 months' salary was justified.
Legal principles established
#- An employer must put allegations specifically to an employee and seek explanation in writing through a notice to show cause, and test allegations at a structured disciplinary forum, to satisfy sections 41, 43 and 45 of the Employment Act
- Where an employer fails to discharge its obligations under Sections 41, 43 and 45 of the Employment Act 2007, termination is unfair
- A party claiming underpayment must avail the applicable Wage Orders to establish the entitlement
Court orders
#- 1.Declaration that termination was unfair
- 2.Respondent to pay the Claimant compensation for unfair termination at Kshs. 78,000 and one month's salary in lieu of notice at Kshs. 6,500, total Kshs. 84,500
- 3.Certificate of Service to issue to the Claimant
- 4.Costs of the claim to the Claimant
- 5.Interest at the rate of 16% per annum from the date of Judgment until payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment claims (Employment Act 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ngusu v BOM, Kyome Girls Secodnary School (Cause 2560 of 2016) [2024] KEELRC 1146 (KLR)[2024] KEELRC 1146 (KLR)15 May 2024
Cite this brief
#Cite this brief
Caselaw, "Josephine Nzau Nzilu v Board of Management Rasul Al Amin Preparatory School [2020] KEELRC 1641 (KLR)", Case Analysis (2020). Cause No 628 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1641/eng@2020-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.