Kibusion v Board of Management, Kimng’orom Girls High School (Employment and Labour Relations Petition E002 of 2023) [2023] KEELRC 2586 (KLR)
The bottom line
#A Kenyan school that ignored reinstatement orders and demoted its bursar was forced to reinstate her with full pay and pay Kshs.500,000 in damages.
What this practically means
#Executive summary
#Key legal issues
#Whether the redeployment of the petitioner amounted to constructive dismissal
The unilateral transfer of the petitioner to another position in defiance of unappealed reinstatement orders amounted to constructive dismissal
The petitioner was unconditionally reinstated as bursar by consent orders of 7th December 2020 which were never appealed. Despite this, the respondent issued a letter deploying her as accounts clerk. The court held the respondent's recourse lay in appeal, not defiance of the orders, and that forcing the transfer amounted to constructive dismissal of the petitioner.
Whether the petitioner's constitutional rights were violated
The respondent contravened the petitioner's rights to fair labour practices, fair administrative action and fair hearing under Articles 41, 47, 48, 50 and 236
The court found the suspension, redeployment and dismissal of the petitioner demonstrated a flouting of her right to fair labour practices, fair administrative action and right to be heard. The dismissal proceeded without a hearing when she was on sick bedrest, and the treatment was held illegal, unfair, unprocedural and unconstitutional.
Whether the pending Ravine proceedings barred the petition
The lower court matter was determined and the constitutional rights question was not an issue there, so it did not bar the petition
The respondent argued forum shopping and abuse of process given the pending Eldama Ravine suit. The court held the lower court matter had been determined in the petitioner's favour and the respondent's recourse was appeal; further, the violation of constitutional rights was not an issue in the lower court and thus did not bar the petition.
Legal principles established
#- Unappealed orders of a subordinate court remain binding, and unilateral redeployment in defiance of reinstatement orders amounts to constructive dismissal
- A determination of employment dispute issues by consent in a lower court does not bar a petition alleging violation of constitutional rights, which was not an issue in the lower court
Court orders
#- 1.Declaration that the respondents' altering of the petitioner's employment, suspension and termination of her employment is illegal, unconstitutional, null and void
- 2.An order of reinstatement or re-engagement of the petitioner with full pay and payment of all benefits from the date of the purported dismissal to date
- 3.In the alternative, compensation equivalent to 12 months salary for the unfair termination/dismissal
- 4.Payment of general damages equivalent to Kshs.500,000/= to the petitioner for breach of her constitutional rights
- 5.Respondents to pay costs of the petition plus interest at court rates with effect from the date of judgment
- Jurisdiction invoked
- Article 162 of the Constitution (as read with Article 159) creating this Court's jurisdiction over employment and labour relations
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibusion v Board of Management, Kimng’orom Girls High School (Employment and Labour Relations Petition E002 of 2023) [2023] KEELRC 2586 (KLR)", Case Analysis (2023). Petition dated 16th February, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2586/eng@2023-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.