Kenya Tertiary & School Workers Union “KETASWU” v Board of Management, Kabarnet High School (Cause E018 of 2022) [2023] KEELRC 830 (KLR)

The court found that although the respondent alleged insubordination and incitement, those reasons were never tested because the grievant was never given an opportunity to be heard. Section 41 of the Employment Act mandates notification and hearing before termination on grounds of misconduct, including explanation of reasons and entitlement to representation. Failing proof of valid reason, fair reason and fair procedure under section 45(2), the termination was unfair and unlawful, entitling the grievant to remedies.

The respondent contended the grievant was not a union member and had no recognition agreement with the claimant union. The court held that membership is individual and does not depend on recognition, grounding this in Article 41 of the Constitution which guarantees every worker the right to form, join or participate in the activities of a trade union. CW2 substantiated membership, and the respondent did not object to the union's standing during conciliation.

The respondent argued that particulars of the underpayment claim were never shown, and that the claimant ought to have given evidence under this head in accordance with sections 107-109 of the Evidence Act. The court accepted that the underpayment claim was not substantiated by evidence and excluded it from the remedies awarded, awarding only the heads it found proved.