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ELRCPartially AllowedFormerly High Court Civil Case No 43 of 1999 (Nairobi HCCC 169 of 2013 relates to shareholding)· [2022] KEELRC 4158 (KLR)

Kuira v Karanja & 2 others (Cause 79 of 2018) [2022] KEELRC 4158 (KLR)

Employment and Labour Relations Court
22 September 2022
3,033 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A headmaster unfairly dismissed in 1998 won Kshs 871,472 in unpaid dues, but Kenya's pre-2007 employment law limited what he could claim.

What this practically means

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Executive summary

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The claimant, a professional teacher, director and headmaster of the 3rd respondent (Busara Forest View Academy), sued the respondents seeking a declaration that his dismissal was null and void, reinstatement, or alternatively damages and accrued benefits, after the 1st respondent terminated his services on December 29, 1998 allegedly without board resolution, adequate notice, or a disciplinary hearing. The respondents maintained the termination was for gross misconduct following confrontations with the 1st respondent and that an arbitration clause rendered the suit premature. At trial, the 1st respondent admitted no show-cause notice or warning was issued and that December 1998 salary and notice pay were unpaid. The court held that the claim, originating as High Court Civil Case No 43 of 1999, had to be resolved under the repealed Employment Act cap 226, since the Employment Act 2007 cannot operate retrospectively; under that regime, a contract of service was terminable without reasons and the only remedy was notice pay and unpaid dues. The court awarded the claimant one month's notice pay (Kshs 40,000), unpaid December 1998 salary (Kshs 40,000), and underpayments from 1988 to January 1999 (Kshs 791,472), totalling Kshs 871,472 subject to statutory deductions, with costs and interest. Claims for reinstatement, leave pay, house allowance, and general damages for unfair termination were refused.

Key legal issues

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01

Applicable statutory regime

Holding

The claim, having been terminated in 1998 and initiated as HCCC No 43 of 1999, is governed by the repealed Employment Act cap 226

Reasoning

The court noted the claim was initially filed as High Court Civil Case No 43 of 1999, predating the Employment Act 2007. Since the 2007 Act cannot apply retrospectively, the claim must be resolved under the repealed cap 226 regime, which limited remedies to notice pay and unpaid dues.

p. 5
02

Underpayment claim

Holding

The claimant proved entitlement to parity of salary with the 1st respondent per the board minutes and was awarded the difference between Kshs 40,000 and Kshs 33,260 from 1988 to January 1999

Reasoning

The minutes of March 8, 1988 resolved that the head teacher's pay would equal the manager's. The 1st respondent admitted earning Kshs 40,000 while the claimant earned Kshs 33,260 at termination. The court found the claimant was never paid the agreed parity and awarded the arrears as prayed.

p. 6
03

Leave pay

Holding

Claim for leave allowance failed for lack of proof that leave was sought and denied

Reasoning

The claimant sought leave pay covering 1988 to 1999 but produced no evidence of applications for leave being refused. The respondents contended he enjoyed leave during school holidays and the salary was all-inclusive. Absent proof of denial, the claim was not made out.

p. 6
04

Unpaid December 1998 salary and notice pay

Holding

Awarded one month's notice pay at Kshs 40,000 and unpaid December 1998 salary, which the respondents admitted was unpaid

Reasoning

The respondents admitted the December 1998 salary was unpaid because the claimant had not cleared with the school. Under the repealed Act, notice pay was the recognised remedy upon termination regardless of the validity of reasons, so one month's salary at the 1st respondent's rate was awarded.

p. 6

Legal principles established

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  • The Employment Act 2007 does not operate retrospectively; claims arising from terminations before its commencement are governed by the repealed Employment Act cap 226
  • Under the repealed Employment Act, a contract of service was terminable without reason and the sole remedy was notice pay or wages earned under the contract

Court orders

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  1. 1.1 month salary in lieu of notice at Kshs 40,000
  2. 2.Unpaid salary for December 1998 at Kshs 40,000
  3. 3.Underpayments from 1988 to January 1999 as prayed, Kshs 791,472
  4. 4.Total award of Kshs 871,472 subject to statutory deductions
  5. 5.Respondents to pay costs of the suit plus interest at court rates with effect from the date of the judgment

Authorities

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Legislation

  • Employment Act (repealed)cap 226 Laws of Kenya, section 16
  • Employment Act 2007section 49
  • Repealed Employment Actsection 17

Cases cited (3)

  • Walter Ogal Anuro v Teacher Service Commission
    [2013] eKLR
  • National Bank of Kenya V Pipelastic Samkolit (K) limited and another
    [2001] eKLR
  • CMC Aviation Limited V Mohammed Noor
    [2015] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction under the repealed Employment Act cap 226 Laws of Kenya, the claim having originated in the High Court

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, "Kuira v Karanja & 2 others (Cause 79 of 2018) [2022] KEELRC 4158 (KLR)", Case Analysis (2022). Formerly High Court Civil Case No 43 of 1999 (Nairobi HCCC 169 of 2013 relates to shareholding). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4158/eng@2022-09-22

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