Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in the judgment as provided· [2023] KEELRC 2189 (KLR)

Kariuki v Board of Management, Moi Girls School, Nairobi (Cause 2291 of 2015) [2023] KEELRC 2189 (KLR)

Employment and Labour Relations Court
22 September 2023
AMAnna Ngibuini Mwaure
3,026 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

#

A Kenyan court ruled a school nurse was unfairly dismissed after study leave, confirming that asking for study leave is not resignation under Kenyan employment law.

What this practically means

#

Executive summary

#
The claimant, employed by the respondent in 1993 as a school nurse, sought remedies for unfair termination following her exclusion from employment after returning from study leave. She applied in February 2012 for study leave to pursue a KRCHN course at KMTC, offering to use accrued leave days. The respondent instead granted her unpaid study leave, required her to vacate the school nurse house, and stopped her salary. On completing her studies she reported back on September 16, 2013 but was told her case would be decided later. By a letter of February 4, 2014 the respondent directed her to vacate the house and advertised her position, inviting her to apply. The respondent maintained she had voluntarily left employment. The court held that a request for study leave was not a resignation, that the respondent never communicated that her contract had ended, and that directing her to re-apply for the position she had held for about two decades, without hearing her on the allegations levelled at meetings of November 25, 2013 and February 28, 2014, breached sections 41, 43 and 45 of the Employment Act. The court found unfair, unlawful and unprocedural termination amounting to constructive dismissal and awarded notice pay of Kshs 83,022/-, Kshs 138,370/- for the period September 2013 to January 2014 on legitimate expectation, and twelve months' compensation of Kshs 332,088/-, totaling Kshs 553,480/-, with costs and interest. Claims for study leave salary, public holidays, rest days, leave days and service pay were declined for lack of proof, waiver or limitation.

Key legal issues

#
01

Whether the claimant was unfairly terminated or voluntarily left employment

Holding

The court found the claimant was unfairly, unlawfully and unprocedurally terminated, amounting to constructive dismissal; she had not resigned and the respondent's assertion of voluntary departure was unsubstantiated as no resignation letter was produced.

Reasoning

The claimant requested study leave, not resignation, and the respondent granted unpaid study leave without informing her that her position could not be held. On completing studies she was told to re-apply for her former position despite serving from 1993 to 2012. Meetings levelled allegations against her without hearing her, she was ordered to vacate the nurse house and the position advertised. The court held this was a termination done without the mandatory procedure in sections 41, 43 and 45 of the Employment Act, and no resignation letter supported the respondent's case.

p. 6
02

Entitlement to salary for September 2013 to January 2014

Holding

Awarded on the basis of legitimate expectation, the claimant having expected to resume work on completion of her studies

Reasoning

Although the claimant did not actually work from September 2013 to January 2014, she was ready, willing and expected to resume her position after her studies, having reported back on September 16, 2013. Relying on the legitimate expectation principle as reflected in Kenya Union of Printing Publishing Paper Manufacturing and Allied Workers v Timber Treatment International Limited, the court awarded her Kshs 138,370/- for that period.

p. 6

Legal principles established

#
  • For a dismissal to be fair there must be both fair procedure under section 41 and justification under section 43 of the Employment Act
  • A request for study leave is not a resignation from employment

Court orders

#
  1. 1.Three months' salary in lieu of notice of Kshs 83,022/- (27,674 x 3)
  2. 2.Kshs 138,370/- for the period September 2013 to January 2014 based on legitimate expectation
  3. 3.12 months' salary as compensation for unfair termination under section 49(1)(c) and (4)(e) of the Employment Act, Kshs 332,088/-
  4. 4.Total award of Kshs 553,480/-
  5. 5.Costs of the claim awarded to the claimant
  6. 6.Interest at court rates from the date of judgment until full payment

Authorities

#

Legislation

  • Employment ActSections 41, 42(1), 43, 44(3) and (4), 45, 47, 49(1)(c) and 49(4)(e)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d) and 48
  • Collective Bargaining Agreement (KUDHEIHA Workers and Ministry of Education)Clause 35; clause 5(i)

Cases cited (2)

  • Erick Murungi Njagi vs Clarion Hotel Limited
    (2022) eKLR
  • Kenya Union of Printing Publishing Paper Manufacturing and Allied Workers vs Timber Treatment International Limited
    (2013) eKLR
Jurisdiction invoked
Employment and labour relations dispute under the Employment Act (first-instance ELRC jurisdiction)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kariuki v Board of Management, Moi Girls School, Nairobi (Cause 2291 of 2015) [2023] KEELRC 2189 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2189/eng@2023-09-22

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