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ELRCPartially AllowedNot stated in the judgment as provided· [2023] KEELRC 1450 (KLR)

Maina & another v Naisula Holding Limited t/a Naisula School (Cause 693 & 694 of 2018 (Consolidated)) [2023] KEELRC 1450 (KLR)

Employment and Labour Relations Court
16 June 2023
BOBYRAM ONGAYA
1,633 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court found two school workers were unfairly fired without notice or hearing, awarding them over Kshs. 1 million and costs.

What this practically means

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Executive summary

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Two claimants sued their former employer, a school, for unfair summary dismissal in May 2015. The 1st claimant, a Laboratory Technician earning Kshs. 42,500, was publicly confronted by the Executive Director in a classroom, told she had been fired, and handed a summary dismissal letter citing gross misconduct with no particulars. The 2nd claimant, an ICT Teacher and IT Administrator earning Kshs. 77,000, was dismissed by letter citing ambiguous anomalies in his employment records. The respondent pleaded gross misconduct, breach of trust and forged certificates, and asserted that a hearing was accorded. The respondent's witness admitted no disciplinary minutes existed and no terminal dues were paid. The court found both dismissals violated section 41 of the Employment Act (no notice or hearing) and that the respondent failed to prove valid reasons under sections 43 and 45. The claimants were awarded their contractual three months' notice pay (Kshs. 127,500 and Kshs. 231,000 respectively). The court exercised its section 49 discretion to award the 1st claimant the maximum 12 months' compensation (Kshs. 510,000), treating the public humiliation as a serious aggravating factor, but awarded the 2nd claimant only 2 months (Kshs. 154,000) because his apology letters showed he contributed to his termination. Overtime claims failed for want of evidence, and the constitutional damages claims for inhuman and degrading treatment were declined as the humiliation had already been factored into compensation. Judgment was entered for Kshs. 637,000 for the 1st claimant and Kshs. 385,000 for the 2nd, payable by 01.09.2023 with interest thereafter, plus costs.

Key legal issues

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01

Procedural fairness of summary dismissal

Holding

The dismissals were procedurally unfair because no notice or hearing was accorded, and no disciplinary minutes were produced

Reasoning

Section 41 requires notice and a hearing before termination. RW admitted no minutes of any disciplinary committee hearing had been filed, and the claimants were abruptly confronted and dismissed in public without opportunity to be heard. The court found the dismissals abrupt and unfair in procedure and substance.

p. 3
02

Validity of reasons for termination

Holding

The respondent failed to prove valid and fair reasons for termination as required by sections 43 and 45

Reasoning

The 1st claimant's dismissal letter stated gross misconduct without particulars; the 2nd claimant's letter cited ambiguous anomalies. RW failed to shed light on the reasons. Reasons not established at termination cannot be justified later, so the dismissals also failed in substance.

p. 3
03

Compensation under section 49

Holding

Maximum 12 months' compensation for the 1st claimant due to humiliating manner of dismissal; 2 months for the 2nd claimant due to his contribution to the termination

Reasoning

The court considered the humiliating public termination a serious aggravating factor warranting maximum compensation for the 1st claimant. The 2nd claimant's apology letters admitting misconduct were mitigating factors in the respondent's favour, justifying only 2 months' salary.

p. 3
04

Overtime claims

Holding

Overtime claims declined for want of evidence

Reasoning

Working hours were contractually determined by school activities and a duty rota; the claimants never raised grievances about extra hours during employment, so the claims were afterthoughts and unproven.

p. 4

Legal principles established

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  • An employer must establish both valid reasons and due process (notice and hearing) for a summary dismissal to be fair
  • Where an employee contributed to the termination (e.g. through admitted misconduct), that contribution is a mitigating factor reducing compensation

Court orders

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  1. 1.The respondent to pay the 1st claimant Kshs. 637,000.00 and the 2nd claimant Kshs. 385,000.00 (less due PAYE) by 01.09.2023 failing interest at Court rates from the date of judgment till full payment
  2. 2.The respondent to pay the claimants, each, respective costs of the suit

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 44
  • Employment Act, 2007section 45
  • Employment Act, 2007section 49
  • Constitution of Kenya, 2010Article 25
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 45, 49 and 44 cited)

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, "Maina & another v Naisula Holding Limited t/a Naisula School (Cause 693 & 694 of 2018 (Consolidated)) [2023] KEELRC 1450 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1450/eng@2023-06-16

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