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ELRCDismissedAppeal from Employment Cause Number 2 of 2020, Senior Principal Magistrates Court at Ndhiwa· [2022] KEELRC 1229 (KLR)

Ochanda v Secretary BOM Rarage Mixed Secondary School & another (Employment and Labour Relations Appeal E032 of 2021) [2022] KEELRC 1229 (KLR)

High Court of Kenya at Kisumu
21 July 2022
2,293 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Kisumu dismissed a school lab technician's appeal, holding his employer fairly followed Kenya's Employment Act before firing him.

What this practically means

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Executive summary

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This is a first appeal from the Senior Principal Magistrates Court at Ndhiwa, which on 2nd July 2021 dismissed the Appellant's claim seeking a declaration that his termination as a school Laboratory Technician was unfair and unlawful, and reinstatement. The Appellant filed thirteen grounds of appeal, contending that the Trial Magistrate misinterpreted Section 46 of the Employment Act 2007 by reasoning that his union activities justified termination, failed to appreciate his mandate as a KUDHEIHA workers' representative, ignored documentary evidence, and misdirected herself generally. He sought setting aside of the trial judgment, judgment in his favour, and damages for wrongful termination. The Respondents argued that due process was followed - show cause letter, interdiction letter, invitation to and attendance at disciplinary proceedings with union representation - and that the damages prayer was new and beyond the appellate court's jurisdiction. The court, guided by Musera v Mwechelesi and Selle v Associated Motor Boat Co., re-evaluated the evidence as on a first appeal. It held that the termination procedure complied with Section 41 of the Employment Act since the Appellant was heard and represented by union officials, and that the reasons for termination - deteriorated discipline, working with students against management, locking out the Principal, and incitement - were valid, fair and reasonable, citing Pius Machafu Isindu v Lavington Security Guards Limited. Relying on Mbogo v Shah, the court found no basis to interfere with the trial court's judgment. The appeal was dismissed in its entirety with no orders as to costs.

Key legal issues

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01

Fairness of the termination procedure under Section 41 of the Employment Act

Holding

The procedure was fair: the Appellant was issued a show cause letter and interdiction letter, invited to and attended a disciplinary hearing, and was represented by union officials

Reasoning

The Appellant admitted in his testimony that he was invited to and attended the disciplinary meeting. Evidence showed union officials attended to represent him. Section 41 entitles an employee to explanation of reasons and to have a shop floor union representative present. This mirrors the Chitavi authority relied on by the Respondents. The court therefore held the Respondents followed due process, affirming the trial court's finding.

p. 5
02

Validity and fairness of the reasons for termination despite the Appellant's union activities (Section 46 Employment Act)

Holding

The reasons given - deteriorated discipline, working with students against school management, locking out the Principal, and incitement - were valid, fair and reasonable

Reasoning

The Appellant argued the termination was premised on his union membership contrary to Section 46. The court noted Section 46 lists what do not constitute fair reasons for termination, but found the Respondents' stated reasons were based on misconduct, supported by two witnesses who testified. Relying on Pius Machafu Isindu v Lavington Security Guards Limited, the court accepted the reasons as valid and fair, distinguishing them from mere union activity.

p. 5
03

Whether the appellate court should interfere with the trial court's findings

Holding

No basis to interfere; the trial court's judgment was properly reached

Reasoning

Applying Musera v Mwechelesi and Selle v Associated Motor Boat Co., the court, as a first appellate court, re-evaluated the evidence but found clear and supportable findings by the trial magistrate. Citing Mbogo v Shah, the court held it lacked basis to interfere with the lower court's exercise of discretion. All thirteen grounds of appeal were held unproved.

p. 5

Legal principles established

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  • On a first appeal, the court re-assesses and re-evaluates the entire evidence tendered before the trial court and arrives at its own conclusions, while taking into account the lower court's exercise of discretion on findings of fact and law
  • An employer complies with Section 41 of the Employment Act where it issues a show cause letter, a letter of interdiction, invites the employee to a disciplinary hearing, and allows the employee to be represented by a union representative

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.No orders as to costs

Authorities

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Legislation

  • Employment ActSection 46
  • Employment ActSection 44(4)
  • Employment ActSection 45(4)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 42(1)

Cases cited (6)

  • Anthony Mkala Chitavi vs. Malindi Water & Sewerage Co. Ltd
    (2012) eKLR
  • Musera vs. Mwechelesi & Another
    ([2007]) KLR 159
  • Selle vs. Associated Motor Boat Co.
    [1968] EA 123
  • Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Limited
    [2013] eKLR
  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
  • Mbogo & another v Shah
    [1968] EA 93
On appeal from
Senior Principal Magistrates Court at Ndhiwa
Cause Number 2 of 2020
Jurisdiction invoked
First appeal from the Senior Principal Magistrates Court (Memorandum of Appeal filed 6th September 2021); no specific constitutional provision cited

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, "Ochanda v Secretary BOM Rarage Mixed Secondary School & another (Employment and Labour Relations Appeal E032 of 2021) [2022] KEELRC 1229 (KLR)", Case Analysis (2022). Appeal from Employment Cause Number 2 of 2020, Senior Principal Magistrates Court at Ndhiwa. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1229/eng@2022-07-21

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