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ELRCPartially AllowedPetition dated 16th February, 2023· [2023] KEELRC 2586 (KLR)

Kibusion v Board of Management, Kimng’orom Girls High School (Employment and Labour Relations Petition E002 of 2023) [2023] KEELRC 2586 (KLR)

Employment and Labour Relations Court
24 October 2023
7,733 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The petitioner, employed as school Bursar by the respondent board on permanent and pensionable terms from 7th June 2012, was redeployed to a non-existent head of library position on 1st October 2019 upon resuming from maternity leave. She sued at Eldama Ravine, and by consent of 7th December 2020 was unconditionally reinstated as bursar, with disciplinary proceedings struck from her records. The consent was never appealed. The respondent nevertheless deployed her as accounts clerk by letter of 22nd January 2021, which she declined. She was then issued a notice to show cause for insubordination and absenteeism, suspended, and after failing to attend a disciplinary hearing on grounds of illness (supported by medical notes), dismissed by letter of 19th July 2021. The respondent had earlier been fined Kshs.50,000 for contempt of the reinstatement orders. The respondent argued the petition lacked precision, that ordinary remedies existed, that the pending Ravine suit barred the petition, and that reinstatement is discretionary. The court held that the unappealed reinstatement orders remained binding and that the unilateral redeployment in defiance amounted to constructive dismissal; that the respondent flouted the petitioner's rights to fair labour practices, fair administrative action and fair hearing; and that the petition was not barred since the constitutional rights question was not an issue in the lower court, whose determination could only be challenged by appeal. The court declared the alteration of employment, suspension and termination illegal, unconstitutional, null and void, ordered reinstatement or re-engagement with full pay and benefits, with alternative compensation of 12 months' salary, awarded Kshs.500,000 general damages for breach of constitutional rights, and awarded costs plus interest to the petitioner.

Key legal issues

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01

Whether the redeployment of the petitioner amounted to constructive dismissal

Holding

The unilateral transfer of the petitioner to another position in defiance of unappealed reinstatement orders amounted to constructive dismissal

Reasoning

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.

p. 15
02

Whether the petitioner's constitutional rights were violated

Holding

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

Reasoning

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.

p. 15
03

Whether the pending Ravine proceedings barred the petition

Holding

The lower court matter was determined and the constitutional rights question was not an issue there, so it did not bar the petition

Reasoning

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.

p. 15

Legal principles established

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  • 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

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  1. 1.Declaration that the respondents' altering of the petitioner's employment, suspension and termination of her employment is illegal, unconstitutional, null and void
  2. 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. 3.In the alternative, compensation equivalent to 12 months salary for the unfair termination/dismissal
  4. 4.Payment of general damages equivalent to Kshs.500,000/= to the petitioner for breach of her constitutional rights
  5. 5.Respondents to pay costs of the petition plus interest at court rates with effect from the date of judgment

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 19, 20, 22, 23(3), 24, 25(c), 27, 28, 41, 47, 48, 50, 159, 162, 232, 236, 258, 259
  • Employment ActNo. 11 of 2007, sections 10(5), 41, 43, 44, 45, 47, 49(3), 50, 5(7)(c)
  • Fair Administrative Actions ActNo. 4 of 2015, section 4
  • Basic Education Actsection 59
  • Civil Procedure Act and Rules
  • Industrial Court Actsection 12(3)(vii)

Cases cited (23)

  • Elizabeth Kwamboka Khaemba Vs BOG Cardinal Otunga High School Mosocho & 2 others
    [2014] eklr
  • Chrispus Ileli Kunuwa V County Government of Kitui and another
    [2020] eklr
  • Chief Justice and President of the Supreme Court of Kenya & Another Vs Khaemba
    Civil Appeal No. 533 of 2019 [2021] {KECA} 17th December, 2021
  • Galgalo Jarso Jillo Agricultural Finance Corporation
    [2021] eklr
  • Edward Otsieka Opiayo Insurance Regulatory Authority
    [2020] eklr
  • Abraham Gumba v Kenya Medical Supplies Authority
    [2014] eKLR
  • Sims Vs. the Board of Trustees Holly Springs Municipal Separate District School
    414 SO. 2d 431 [Miss. 1982]
  • New World Stainless Steel Limited Cosma Mbalu Munyasya
    [2021] eklr
  • Seablo v Belgravaia Hotel
    (1997) 6 BLLR 829 (CCMA)
  • Gladys Wambui Mwai V Highland Plants Limited
    [2019] eklr
  • Lt. Col(Rtd) Richard Ncharpi Leiyagu V Chief of Kenya Defence Forces and 2 others
    [2015] eklr
  • Kaaimba Mangaara V Tharaka Nithi County Government
    [2018] eklr
  • Anarita Karimi Njeru Republic
    [1979] eklr
  • Mumo Matemu V Trusted Society of Human Rights Alliance and 5 others
    [2013] eklr
  • John Harun Mwau V Peter Gastrow & 3 others
    [2014] eklr
  • Minister of Home Afiairs V Bickles & others
    [1985] LRC Cost 755
  • Uhuru Muigai Kenyatta V Nairobi Star Publications Limited
    [2013] eklr
  • AG vs S.K. Dutambala
    Cr. Appeal No.37 of 1991
  • Republic V Paul Kihara Kariuki, Attorney General & 2 Others Ex parte Law Society of Kenya
    [2020] eklr
  • Mary Chemweno Kiptui V Kenya Pipeline Company Limited
    [2014] eklr
  • Kenya Power &Lighting Company Limited V Aggrey Wasike
    [2017] eklr
  • Kenya Airways Limited V Aviation and Allied Workers Union Kenya & 3 others
    [2014] eklr
  • Alfred Nyungu Kimungui V Bomas of Kenya
    [2013] eklr
Jurisdiction invoked
Article 162 of the Constitution (as read with Article 159) creating this Court's jurisdiction over employment and labour relations

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, "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.