Ochanda v Secretary BOM Rarage Mixed Secondary School & another (Employment and Labour Relations Appeal E032 of 2021) [2022] KEELRC 1229 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Fairness of the termination procedure under Section 41 of the Employment Act
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
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.
Validity and fairness of the reasons for termination despite the Appellant's union activities (Section 46 Employment Act)
The reasons given - deteriorated discipline, working with students against school management, locking out the Principal, and incitement - were valid, fair and reasonable
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.
Whether the appellate court should interfere with the trial court's findings
No basis to interfere; the trial court's judgment was properly reached
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed in its entirety
- 2.No orders as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.