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ELRCDismissedMemorandum of Claim dated 6th October 2015 (Employment and Labour Relations Court)· [2021] KEELRC 960 (KLR)

Kennedy Mutinda Kavemba v Principal, Kiambu Institute of Science & Technology [2021] KEELRC 960 (KLR)

Employment and Labour Relations Court
22 September 2021
NMNzioki Wa Makau
2,240 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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The Employment Court dismissed a worker's claim because he sued his school's Principal instead of the Board that actually employed him, losing all Kshs. 283,352.

What this practically means

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Executive summary

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The Claimant, Kennedy Mutinda Kavemba, sued the Principal of Kiambu Institute of Science and Technology claiming Kshs. 283,352/- for unlawful and wrongful termination of employment and unpaid terminal dues, including one month's salary in lieu of notice, severance pay for five years, overtime for four years, acting allowance for three years and compensation for unlawful termination. He alleged his contract, last renewed on 27th January 2015, was suspended on 4th June 2015 and terminated on 3rd August 2015 for insubordination without a hearing, contrary to the terms and conditions of service and Sections 41 and 45 of the Employment Act, 2007. The Respondent maintained that the dismissal was lawful under delegated authority from the Board of Governors, that the Claimant was heard in writing, and that the Principal was not the employer. The Claimant relied on authorities on fair hearing and procedure; the Respondent relied on Republic v Public Service Commission of Kenya & 4 Others on the circumstances requiring an oral hearing. The defence case was closed on 12th July 2021 as no defence witness statement was filed. The Court held that the Principal was merely a supervisor and delegate of the employer (the Board of Management) and that delegation did not make him the employer; the Claimant ought to have sued his employer, possibly joining the Principal as co-respondent. The suit was therefore untenable and was dismissed with costs to the Respondent, capped at Kshs. 30,000/-.

Key legal issues

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01

Whether the Principal was the proper party to the suit

Holding

The Respondent, as supervisor and delegate of the employer, was not the Claimant's employer and the suit against him was untenable and dismissible

Reasoning

The Claimant was employed by the Board of Management. The Principal exercised delegated authority to interdict and dismiss, but delegation did not make him the employer. The employer was the party required to pay notice, severance or salary underpayments. The Claimant should have sued the employer, possibly joining the Principal as co-respondent. Having not done so, the suit could not yield the reliefs claimed.

p. 3

Legal principles established

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  • Suing a delegate or supervisor of the employer, rather than the employer itself, is untenable where the reliefs sought are payable by the employer

Court orders

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  1. 1.Suit against the Respondent dismissed with costs to the Respondent
  2. 2.Costs to the Respondent capped at Kshs. 30,000/-

Authorities

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Legislation

  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 35(1)(c)
  • Employment Act, 2007Section 43
  • Terms and Conditions of Service for Board of Governors EmployeesClauses 2:1, 2:8, 6:2, 6:4, 6:14, 6:20

Cases cited (5)

  • Joshua Tako Aluondo v Xfor Security Solutions Kenya Limited
    [2019] eKLR
  • Mwende Mbiti v Citrus Inn Limited
    [2018] eKLR
  • Nicholus Muasya Kyula v FarmChem Ltd
    [2012] eKLR
  • Samuel Mutuku Mutunga v Steel Makers Limited
    [2019] eKLR
  • Republic v Public Service Commission of Kenya & 4 Others
    Judicial Review No. 29 of 2012 [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007 and labour laws invoked)

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, "Kennedy Mutinda Kavemba v Principal, Kiambu Institute of Science & Technology [2021] KEELRC 960 (KLR)", Case Analysis (2021). Memorandum of Claim dated 6th October 2015 (Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/960/eng@2021-09-22

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