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ELRCDismissedPetition No 120 of 2020· [2021] KEELRC 935 (KLR)

Kenya Union of Domestic, Hotels, Educational Institutions and Hospital Workers v George Magoha, Cabinet Secretary for Ministry of Education, Science and Technology & 2 others; Kenya Secondary School Heads Association & 3 others (Interested Parties) [2021] KEELRC 935 (KLR)

Employment and Labour Relations Court
30 September 2021
MNMathews N. Nduma
909 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court dismissed KUDHEIHA's challenge to unpaid Board of Management school staff during COVID-19 because the union failed to prove specific rights violations.

What this practically means

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Executive summary

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The petitioner, the union KUDHEIHA, filed a petition on 4th August 2020 seeking orders compelling the respondents to release emolument funds for payment of Board of Management employees, a permanent injunction against termination, redundancy, suspension or dismissal of those employees, costs and interest. The union alleged that various Boards of Management, citing schools named as Nginda Girls Secondary School, Kahatia Secondary School and Muranga High School, had placed such employees on unpaid leave or half pay following the COVID-19 containment measures issued on or about 13th March 2020, while employees under the Teachers Service Commission continued to be paid, in violation of Article 41 of the Constitution and the anti-discrimination provisions of Sections 5(1)(a), (2) and (4) of the Employment Act, 2007. The petitioner also relied on Legal Notice No. 39 of 2015 made under the Education Act, 2013. The 1st respondent, the Cabinet Secretary for Education, swore a replying affidavit deposing that funds had been disbursed to primary and secondary schools covering the relevant periods, that the issues raised had been addressed, and that the petitioner had not demonstrated with precision any violation. The court held that the petitioner had failed to demonstrate with precision, and to adduce evidence of, specific violations of rights of named employees or a class of employees, applying Annarita Karimi Njeru and Mumo Matemu and the burden-of-proof rules in Sections 107 and 108 of the Evidence Act. The court also took judicial notice that schooling had resumed, rendering the matters moot, and held that employment of support staff by Boards of Management is purely contractual and varies from school to school, Ministry guidelines being merely advisory. The petition was dismissed with no order as to costs.

Key legal issues

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01

Alleged discrimination contrary to Article 41 and Sections 5(1)(a), (2) and (4) of the Employment Act

Holding

Petition dismissed - no specific violation of rights of named employees or a class of employees was proved

Reasoning

The court found the petitioner neither pleaded nor adduced evidence proving specific violations of rights of named employees or a class of employees. It relied on the Annarita Karimi Njeru standard of precision and the Mumo Matemu threshold for constitutional petitions, and on the Evidence Act burden-of-proof provisions.

p. 2
02

Whether the claim had become moot

Holding

Yes - schooling had resumed and funds had been disbursed, rendering the matters raised moot

Reasoning

The court took judicial notice that schooling in primary and secondary schools was ongoing and that the disbursements complained of had since been made, so the live controversy had dissipated.

p. 2
03

Nature of Board of Management support staff employment

Holding

Purely contractual, varying by school according to ability to pay; Ministry guidelines are non-binding

Reasoning

The court held that the terms of the support staff cadre vary from one school to another depending on the school's ability to pay, and that Ministry remuneration guidelines exist only to minimise underpayment and create uniformity, not to create enforceable terms equal to TSC employees.

p. 2

Legal principles established

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  • A petitioner bears the onus of demonstrating with precision the manner in which his or its rights have been violated
  • The burden of proof in civil matters lies on the party alleging, per Sections 107 and 108 of the Evidence Act
  • Employment of support staff by Boards of Management is purely contractual and varies from school to school; Ministry remuneration guidelines are not binding terms

Court orders

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  1. 1.The petition is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of KenyaArticle 41
  • Employment ActSections 5(1)(a), 5(2), 5(4) and 5
  • Education ActLegal Notice no. 39 of 2015 and regulation 18 thereof
  • Evidence Act, Cap. 80 Laws of KenyaSections 107 and 108

Cases cited (2)

  • Annarita Karimi Njeru
    (1979) eKLR 154
  • Mumo Matemu –vs- Trusted Society of Human Rights, Alliance
    [2013] eKLR
Jurisdiction invoked
Constitutional petition under Article 41 of the Constitution of Kenya and the Employment Act, 2007 (petition court; specific enabling provision not quoted in 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, "Kenya Union of Domestic, Hotels, Educational Institutions and Hospital Workers v George Magoha, Cabinet Secretary for Ministry of Education, Science and Technology & 2 others; Kenya Secondary School Heads Association & 3 others (Interested Parties) [2021] KEELRC 935 (KLR)", Case Analysis (2021). Petition No 120 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/935/eng@2021-09-30

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