Kefa Asiago Obwogo v Seventh Day Adventist Church & 2 others [2020] KEELRC 1653 (KLR)
The bottom line
#A Kenyan court awarded a teacher unpaid wages but refused compensation because his arrest over a theft at the workplace gave the employer a valid reason to dismiss him.
What this practically means
#Executive summary
#Key legal issues
#Whether termination was for a valid and genuine reason under section 43(2) of the Employment Act
The claimant's arrest following a break-in and theft of documents at his office constituted a valid and genuine reason for termination; termination was at the instance and misconduct of the claimant
The court found it common cause that the claimant was arrested following a report by the respondents over a break-in at the offices, involving theft of documents from what was the claimant's office, of which he held the keys. Relying on section 43(2) and case law on the employer's onus, the court held the respondents had a genuine reason to terminate. The claimant's demand for dues four days later did not alter this conclusion.
What wages were due where there was no written contract of employment
In the absence of a written contract, the statutory minimum wage under the applicable wage orders applied, entitling the claimant to wage arrears computed on the Regulation of Wages (General) (Amendment) Order, 2013
Private school teachers are not wage-regulated, so the general labourer scale applied. The court computed underpayment of Ksh.4,102.25 monthly from January to May 2013 and Ksh.45,216 from June 2013 to February 2014 under the 2013 Amendment Order, giving total wage arrears of Ksh.61,625.25 inclusive of house allowance.
Legal principles established
#- Under section 43 of the Employment Act, the onus is on the employer to prove the reason for termination, failing which the termination is deemed unfair; the test is partly subjective, requiring proof of reasons the employer genuinely believed to exist
- Privately employed teachers are not wage-regulated and the applicable scale is that of a general labourer; statutory minimum wage orders still apply
- Under section 45(5)(b) of the Employment Act, the court considers the employee's conduct leading to termination when assessing compensation and notice pay
Court orders
#- 1.Judgment entered for the claimant against the respondents for wage arrears of Ksh.61,625.25 subject to sections 49(2) and 19 of the Employment Act, 2007 allowing statutory deductions and any other lawful owing dues from the claimant to the respondent
- 2.Each party to bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kefa Asiago Obwogo v Seventh Day Adventist Church & 2 others [2020] KEELRC 1653 (KLR)", Case Analysis (2020). Cause No. 148 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1653/eng@2020-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.