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ELRCPartially AllowedNot stated in the judgment· [2020] KEELRC 1811 (KLR)

Patrick Kisang Cheburet v Board of Management Biwott Mixed Day Secondary School [2020] KEELRC 1811 (KLR)

Employment and Labour Relations Court
29 January 2020
1,705 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A school principal who kept a suspended accounts clerk home after his suspension expired was overruled — the court ordered reinstatement with full back pay.

What this practically means

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Executive summary

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The claimant, employed as an Accounts Clerk, sued the respondent school alleging unlawful suspension on 3rd November 2017, a disciplinary hearing on 26th January 2018 resulting in a further two-week suspension, and continued exclusion from work and salary thereafter. He sought reinstatement without loss of salary, or in the alternative terminal benefits of Kshs. 8,351,985.80. The respondent denied wrongful suspension, asserting disciplinary processes were still pending and that the suit was premature. The court framed two issues: prematurity and entitlement to reliefs. It found that the full Board had concluded the disciplinary case on 26th January 2018 with a two-week suspension expiring on 13th February 2018, and that the principal (RW1) thereafter arbitrarily and unlawfully kept the claimant away from work, purportedly instituted fresh allegations on 19th June 2018 when the Board's term had expired, and lacked mandate to disregard the Board's decision. All actions taken after 13th February 2018 were held null and void ab initio. The claimant proved his continued employment on a balance of probabilities. Judgment was entered for the claimant: reinstatement without loss of salary from 13th February 2018, payment of arrear salaries from that date (to be computed and filed within 30 days, with the respondent entitled to respond within 30 days of service), a declaration that employment was never terminated, interest at court rates from date of filing suit, and costs of the suit. All other reliefs, including the alternative claim for terminal benefits, were dismissed for lack of merit.

Key legal issues

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01

Whether the suit was premature given pending internal disciplinary processes

Holding

The suit was not premature. The Board's decision (two weeks' suspension) had expired on 13th February 2018; the principal's refusal to lift the suspension and subsequent fresh allegations were unprocedural, unlawful and null and void.

Reasoning

The court found the claimant was heard by the full Board on 26th January 2018, which concluded the matter with a two-week suspension effective 29th January 2018. After expiry on 13th February 2018 the principal kept the claimant away and instituted fresh allegations without mandate, and at a time when the Board's term had expired. Uncontroverted evidence showed the real cause was a dispute over Kshs. 307,000 cash in hand. Further actions after that date were void ab initio, so there was no pending process to exhaust.

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02

What reliefs flow from the unlawful suspension

Holding

Reinstatement without loss of salary from 13th February 2018, payment of arrear salaries from that date, and a declaration that employment was never terminated; all other reliefs dismissed.

Reasoning

The court held the claimant proved on a balance of probabilities that he remained in valid employment after the two weeks expired. Reinstatement was the primary relief sought and was appropriate since the employment had never been terminated. Arrear salaries were to be computed by the claimant with a right of response for the respondent, with interest at court rates and costs of the suit.

p. 3

Legal principles established

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  • An employer's officer cannot keep an employee away from work after a disciplinary suspension has expired, and any further unilateral action taken without mandate is null and void

Court orders

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  1. 1.The claimant is reinstated back to school without loss of any salary and/or benefits with effect from 13th February 2018
  2. 2.The two weeks suspension by the full Board expired on 13th February 2018 and the claimant to be paid all arrear salaries from the said date to date
  3. 3.A declaration that the claimant's employment was never terminated and he remains in full employment of the respondent
  4. 4.The claimant to compute and file arrear salaries due from 13th February 2018 within 30 days and the respondent to file any response within 30 days of service
  5. 5.The award to attract interest at court rates from date of filing suit till payment in full
  6. 6.Costs of the suit to the claimant
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (referenced as memorandum of claim); no specific constitutional/statutory article quoted in the judgment

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, "Patrick Kisang Cheburet v Board of Management Biwott Mixed Day Secondary School [2020] KEELRC 1811 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1811/eng@2020-01-29

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