Keiyo v Moi Educational Centre (Cause 104 of 2019) [2023] KEELRC 2378 (KLR)
The bottom line
#A Kenyan court awarded a teacher Ksh. 1.21 million after her school dismissed her unfairly during a restructuring, because it skipped required consultation and denied her a representative at the disciplinary hearing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was unfair, unlawful and wrongful termination of employment
- 2.Whether the remedies sought should issue
- 3.Who should pay costs
Key legal issues
#Whether the restructuring and reshuffling of the claimant's position without consultation was lawful
The restructuring without notice or consultation breached Section 10(5) of the Employment Act; employees are not chattels and changes must not be arbitrary
The court held that an employer's prerogative to restructure is subject to mandatory consultation under Section 10(5), and the employee must be informed of the reasons for and extent of restructuring under Section 45(2). The claimant was affected by a policy change without notice or reasonable cause to appreciate the circumstances, rendering the process flawed.
Whether the summary dismissal for gross misconduct (failure to hand over) was justified
The dismissal was procedurally unfair; the claimant's rights under Sections 41(1) and 41(2) were violated when her chosen representative was denied access to the disciplinary hearing
Section 41 entitles an employee to explanation of grounds of termination and to have a representative present. The respondent's witness could not explain why the representative was denied attendance. Objectively reviewed, a warning should have sufficed for the incomplete handover; the summary dismissal was harsh and couched to remove her from employment.
Whether the claimant was discriminated against and her constitutional rights violated
No discrimination was established; the grievance was a flawed process amounting to unfair labour practices rather than discrimination
The court found that what existed was not discrimination but a flawed process resulting in unfair labour practices. Fairness depends on the circumstances of each case and involves a value judgment, per the Court of Appeal in Bomas of Kenya v Thiriku. The alleged violations are addressed within the unfair termination claim.
What remedies are due
Notice pay of Ksh. 110,000 and ten months' compensation of Ksh. 1,100,000 awarded; other damages refused
The claimant earned Ksh. 110,000 at exit, due as notice pay. Having served from 2008 to 2019, ten months' gross salary was found appropriate under Section 49. The diminished employability claim was refused as she secured alternative employment as a head teacher, and constitutional damages were subsumed in the unfair termination finding.
Legal principles established
#- Restructuring or reshuffling of employees that affects employment implicates the mandatory provisions of Section 40 of the Employment Act and constitutes redundancy
- Any change or revision of employment terms requires consultation with the employee under Section 10(5) of the Employment Act
- An employee's right under Section 41(1) to have a representative of their choice at a disciplinary hearing is couched in mandatory terms; denying access to that representative negates the entire disciplinary process
- What constitutes fair labour practices depends on the circumstances of each case and involves a value judgment
Court orders
#- 1.A declaration that the respondent terminated the claimant's employment unfairly
- 2.Compensation awarded at Ksh. 1,100,000
- 3.Notice pay Ksh. 110,000
- 4.Costs of the suit to the claimant
- 5.The file shall be returned to ELRC Nairobi Registry
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Employment Act, 2007 claims)
Relief refused
#Damages for diminished employability for 10 years (Ksh. 15,060,000)
Addressed by the compensation awarded; claimant secured alternative employment
Exemplary/aggravated damages
Not awarded; claim subsumed in compensation for unfair termination
Damages for violation of fundamental rights and freedoms (Ksh. 5,000,000)
Court found the grievance was unfair labour practices, addressed within the unfair termination claim, not a separate constitutional violation
Costs
Costs of the suit awarded to the claimant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, judgment is hereby entered for the claimant against the respondent in the following terms; a. a declaration that the respondent terminated the claimant's employment unfairly; b. Compensation awarded at Ksh. 1,100,000; c. Notice pay Ksh. 110,000; d. Costs of the suit.
employees are not chattels. The decision to restructure, reshufie or reorganize the business should not be arbitrary and suficient notice should issue within a reasonable framework
Any lapse with regard to a legal requirement negates the entirety of the disciplinary process.
The summary dismissal of the claimant by the respondent is hereby found unfair and not justified in terms of Section 45 of the Act. Notice pay and compensation are due.
To reshufie employees without consultations and expect the claimant to walk away happy was not a reasonable expectation. To call her for gross misconduct was too harsh, the circumstances objectively reviewed.
Where the respondent found the chosen representative unacceptable, recourse was to secure such right for the claimant by allowing her time to get another employee of her choice.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Keiyo v Moi Educational Centre (Cause 104 of 2019) [2023] KEELRC 2378 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2378/eng@2023-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.