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ELRCDismissedPetition dated 30th August 2021· [2023] KEELRC 753 (KLR)

Omukatia v Kenvic School (Petition 3 of 2021) [2023] KEELRC 753 (KLR)

Employment and Labour Relations Court
23 March 2023
4,478 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a former school driver's claims, ruling that Covid-19 school closures do not amount to constructive dismissal and every money claim must be backed by evidence.

What this practically means

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Executive summary

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The Petitioner, a former driver of a private primary school in Kajiado County employed from 2006 until his resignation effective 31st March 2021, petitioned the court alleging constructive dismissal, unfair termination and violations of Articles 2, 3(1), 10, 19, 20, 21, 22, 23, 24, 27, 35, 41 and 259 of the Constitution. He sought declarations, mandamus compelling payment of house allowance, weekly rest day pay, annual leave, unremitted NSSF contributions, service pay, compensation for constructive dismissal, general damages, a certificate of service, costs and interest. The Respondent countered that the Petitioner was sent home on unpaid leave following the Government's Covid-19 school closure directive, did not report back when schools reopened, and resigned by letter dated 1st March 2021; that his salary was consolidated and above minimum wage, leave was taken during school holidays, NSSF was remitted, and the suit was time barred under section 90 of the Employment Act. The court framed four issues: limitation, constructive dismissal, constitutional violations and entitlement to reliefs. It found the suit was not time barred, having been filed within twelve months of the alleged cessation. However, constructive dismissal was not proved - the Respondent merely complied with a lawful Government directive and no intolerable workplace or repudiatory breach was shown. Consequently no constitutional violation was established; the dispute was essentially contractual and should have been brought as an ordinary memorandum of claim, though following Odunga J in Mokoosio v Vadera the court declined to strike out the petition and determined the prayers as if brought as a claim. All monetary prayers failed for want of proof or as barred by law: the salary exceeded the statutory minimum wage inclusive of house allowance, rest day and leave claims were unproved, the NSSF claim lay with the Fund itself, and an NSSF member is ineligible for service pay. The Petitioner was held entitled only to a certificate of service under section 51 of the Employment Act. The petition was otherwise dismissed with costs to the Respondent.

Key legal issues

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01

Limitation under section 90 of the Employment Act

Holding

Suit filed on 23rd November 2021 was not time barred, whether under the three-year period or the twelve-month continuing-injury provision.

Reasoning

The Petitioner stopped working when schools closed in March 2020 and treated his constructive dismissal as effective on his resignation of 1st March 2021. Filing on 23rd November 2021 fell within both the three-year period and twelve months from cessation, so the Respondent's limitation objection failed.

p. 6
02

Constructive dismissal

Holding

Not proved; the Respondent merely complied with a Government directive to close schools, and the workplace was not shown to be intolerable.

Reasoning

Applying the Coca Cola Ligaga principles, the court found the Petitioner knew the reason he was sent home (Covid-19 closure directive), his resignation letter was an afterthought, and no repudiatory breach by the Respondent was demonstrated. The employer was not at fault in complying with the Ministry of Education directive.

p. 7
03

Alleged constitutional violations (Articles 2, 3(1), 10, 19, 20, 21, 22, 23, 24, 27, 35, 41, 259)

Holding

No constitutional violation found; the dispute was essentially a contractual/employment benefits matter that should have been brought as an ordinary claim.

Reasoning

All substantive remedies sought were employment benefits under the Employment Act. Citing foreign and local authority, the court held it will not entertain constitutional questions where a remedy exists under other legislation, but followed Odunga J in declining to strike out the petition, instead treating the prayers as if made in a claim.

p. 8
04

Monetary claims (house allowance, rest days, leave, NSSF, service pay)

Holding

All failed for want of proof or as a matter of law; salary exceeded minimum wage inclusive of house allowance, and NSSF membership bars service pay.

Reasoning

The Petitioner gave no breakdown or evidentiary basis for the sums claimed and did not rebut the Respondent's account of consolidated salary and leave taken during school holidays. NSSF remittance disputes lie with the Fund, and section 35(6) and (7) of the Employment Act disentitle NSSF members from service pay.

p. 9

Legal principles established

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  • Claims under the Employment Act must be brought within three years, or within twelve months of cessation of a continuing injury, under section 90 of the Employment Act.
  • Constructive dismissal requires an employer breach that is repudiatory, resignation in response to it, and no delay in resigning.
  • Where remedies are available under ordinary employment legislation, the court will decline to determine a constitutional question.
  • A procedural lapse in bringing an employment claim by petition rather than an ordinary memorandum of claim does not warrant striking out; the court may determine the prayers as if brought as a claim.
  • An employee who is a member of NSSF is not eligible for service pay under section 35(6) of the Employment Act.

Court orders

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  1. 1.Petition dismissed with costs
  2. 2.Respondent directed to issue the Petitioner with a certificate of service in accordance with section 51 of the Employment Act

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 2, 3(1), 10, 19, 20, 21, 22, 23, 24, 27(1),(2),(5), 35(1)(b), 41, 259
  • Employment Act No. 11 of 2012Sections 3, 5, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 26(1), 28, 31, 35(6), 35(7), 40, 47, 51, 88, 90
  • Labour Institutions Act No. 12 of 2012Sections 4, 45, 46, 47, 48, 50
  • National Social Security Fund ActSections 20, 22, 27, 55
  • Limitation of Actions Act (Cap. 22)Section 4(1)
  • Regulation of Wages and Conditions of Service (General) OrderRule 2 / minimum wage for drivers

Cases cited (27)

  • James Maringa Mwangi v Kenya Medical Research Institute
  • Mwangi wa Iria & 2 Others v Speaker Murang'a County Assembly & 3 others
  • Dr. Samson Gwer & 5 Others v Kenya Medical Research Institute (KEMRI) & 3 Others
  • Dr. Anne Kinya v Nyayo Tea Zones
  • Kusow Billow Issak v Ministry of Interior and Coordination of National Government & 3 others
  • Munir Sheikh Ahmed v National Bank of Kenya
  • Prof. Dr. Moni Wekesa v Mount Kenya University
  • Rose Wangui Mambo & 2 Others v Limuru Country Club & 17 Others
  • Peter K. Waweru v Republic
  • Nairobi Law Monthly Company Limited v Kenya Electricity Generating Company & 2 Others
  • Unital Hospital v Van Wyk & Another (231/05) [2006] ZASCA
  • Agatha Bugosi Said v Vegpro Kenya Limited
  • Kenya Union of Domestic Hotels Educational Institutions and Hospital Workers (KUDHEIHA) v Fatuma Mohamed
  • Nathan Ogada Atiagaga v David Engineering Limited
  • Milton M. Isanya v Aga Khan Hospital
  • Sophie Muthoni Njagi v Rift Valley Railways (Kenya) Limited
  • Maria Kagai Ligaga v Coca Cola East and Central Africa Limited
  • Elizabeth Washeke and 62 Others v Airtel Networks (K) Ltd & Another
  • Al Yusra Restaurant Ltd v Kenya Conference of Catholic Bishops & Another
  • Josephine Nzau Ndilu v Board of Management Resul Al Amin Preparatory School
  • Edward Akong'o Oyugi & 2 others v Attorney General
  • Joseph Kibet Kipruto v Gajipara Limited
  • Coca Cola East and Central Africa Limited v Maina Kagai Ligaga
  • Martin Lemaiyan Mokoosio & Another v Reshma Prayful Chandra Vadera
    Petition 13 of 2020 [2021] KEHC 56 (KLR)
  • NM & Others vs Smith and Others (Freedom of Expression Institute as Amicus Curiae)
  • Minister of Home Affairs vs Bickle & others, Georges
  • Wahid Munwar Khan vs The State
    AIR
Jurisdiction invoked
Articles 22, 23 and 165 of the Constitution of Kenya 2010 (petition brought under Article 22(1))

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Omukatia v Kenvic School (Petition 3 of 2021) [2023] KEELRC 753 (KLR)", Case Analysis (2023). Petition dated 30th August 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/753/eng@2023-03-23

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