Kuria v Board of Management, Kikuyu Day Secondary School (Cause 2226 of 2017) [2022] KEELRC 1448 (KLR)
The bottom line
#A Kenyan employer can't let a contract expire mid-disciplinary process to avoid unfair termination liability.
What this practically means
#Executive summary
#Key legal issues
#Whether termination was unfair where the disciplinary process ran past the expiry of the contract
The termination was unlawful because the Respondent, aware the contract was ending, suspended the Claimant and allowed the contract to lapse while she was under suspension, denying her substantive and procedural fairness.
The Respondent suspended the Claimant on 8th June 2017 for disciplinary investigations; the contract expired on 4th August 2017 while she was suspended, and the disciplinary committee sat on 13th September 2017 when she was no longer an employee. The court held the employer created the condition precipitating the end of the contract, which smacked of outright illegality. An employee facing a disciplinary process is entitled to substantive and procedural fairness, none of which was accorded.
Whether the Claimant proved underpayment and house allowance arrears
The Claimant failed to prove underpayment, and in any event such a claim must be brought within one year as a continuing wrong under Section 90 of the Employment Act.
Although the Claimant argued she ought to have been in Job Group J with higher pay under the Gazette Notice and Basic Education Regulations, the court found she did not prove underpayment. It further held that underpayment is a continuing wrong requiring a claim within one year under Section 90 of the Employment Act, precluding recovery of arrears for years gone by.
Whether the Claimant was entitled to leave pay
The claim failed because the Respondent produced duly approved leave applications, which are prima facie proof of leave taken.
The Claimant testified she never went on leave and argued the forms were not conclusive proof. The court held that approved leave applications constitute prima facie proof of leave taken, as there is nothing more an employer can present to show an employee went on leave. The claim for leave pay was therefore unsubstantiated.
Legal principles established
#- Where an employer initiates a disciplinary process that runs to the end of an employee's contract, it is not lawful to then assert the contract lapsed by effluxion of time and claim no unfairness occurred.
- An employer who suspends an employee knowing the contract is about to expire creates the condition that precipitates the end of the contract, which amounts to illegality and denies the employee substantive and procedural fairness.
- Underpayment is a continuing wrong and a claim for it must be mounted within one year under Section 90 of the Employment Act.
- Duly approved leave applications are prima facie proof that an employee took leave; there is nothing more an employer can present to show leave was taken.
Court orders
#- 1.Compensation for unlawful termination of contract - 6 month's salary - Kshs. 74,100/-
- 2.Costs of the suit
- 3.Interest on the sums in (i) above at court rates from the date of judgment till payment in full
- 4.Certificate of service
- Jurisdiction invoked
- First-instance employment and labour relations claim under the Employment Act, 2007 (court's jurisdiction as ELRC not expressly invoked by provision in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kuria v Board of Management, Kikuyu Day Secondary School (Cause 2226 of 2017) [2022] KEELRC 1448 (KLR)", Case Analysis (2022). Not stated in the judgment (Employment and Labour Relations Court claim instituted 9th November 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1448/eng@2022-06-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.