Mactilda Wesonga Kokonya v Chairperson, the Secretary Board of Management Mungore Girls Secondary School [2021] KEELRC 1861 (KLR)
The bottom line
#A Kenyan court ruled a teacher's 23-year dismissal unfair because the school could not prove why she was fired or that she got a fair hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent had valid reason to summarily dismiss the claimant
The respondent failed to prove a valid reason; the generalized allegations against the claimant were unproven
The letter of 12/6/2013 was a second warning, not a show cause letter. The 8 charges were generalized with no specific particulars of acts or omissions on specified dates. The claimant never appeared before the full Board, and no minutes of the alleged Board meetings were produced. The Court accepted the claimant's evidence that she was deluded into writing an apology used to justify the dismissal.
Whether the respondent followed a fair procedure
The procedure was unfair: no written response was invited, notice was short, no representation was offered, and no hearing minutes were produced
R.W.1 did not request the claimant to respond in writing to the 8 charges, placed her on indefinite suspension, and summoned her to appear the following day without advising her of the right to a representative under Section 41 of the Employment Act. No minutes of the Board of Governors meeting of 11/7/2013 or the full Board meeting of 2/8/2013 were produced despite being mandatory school governance records.
Remedies available to the claimant
Maximum compensation of 12 months' salary awarded, plus leave pay, notice pay and June 2013 salary; severance and gratuity denied
Reinstatement was untenable due to lapse of time. The Court partly adopted the Labour office settlement terms for terminal benefits and, considering the claimant's 23 years of unblemished service, the unprocedural dismissal, lack of proof of allegations, and absence of alternative employment, awarded maximum compensation equivalent to 12 months' salary, following Ken Freight and Amalgamated Union of Kenya Metal Workers.
Legal principles established
#- The employer bears the onus under Sections 41, 43 and 45 of the Employment Act to demonstrate a valid reason and fair procedure for summary dismissal
- Minutes of a disciplinary hearing are mandatory governance records; failure to produce them undermines the employer's case
- An employee proves unfair dismissal on a balance of probabilities under Section 47(5) of the Employment Act and Sections 107 and 108 of the Evidence Act
Court orders
#- 1.Kshs.78,276 in compensation for unlawful and unfair dismissal
- 2.Kshs.4,566 in lieu of leave
- 3.Kshs.6,523 in lieu of one month notice
- 4.Kshs.2,609 being salary for June, 2013
- 5.Total award of Kshs.89,625
- 6.Interest at Court rates from date of filing suit till payment in full in respect of (b)(c) and (d) above and from date of filing suit in respect of (a) above
- 7.Costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 41, 43, 45, 47(5), 49(1)(c) and (4))
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mactilda Wesonga Kokonya v Chairperson, the Secretary Board of Management Mungore Girls Secondary School [2021] KEELRC 1861 (KLR)", Case Analysis (2021). Bungoma Cause No. 86 of 2017 (formerly Kisumu Cause No. 319 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1861/eng@2021-04-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.