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ELRCAllowedCause No E179 of 2022· [2023] KEELRC 2892 (KLR)

Trustees of Premier Academy Charitable Trust t/a Premier Academy v Ocholah (Cause E179 of 2022) [2023] KEELRC 2892 (KLR)

Employment and Labour Relations Court
15 November 2023
JGJACOB GAKERI
1,291 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The claimant, an academy employer, sued its former employee, a Secondary School teacher engaged on August 1, 2020 at a monthly salary of Kshs.110,000/=, alleging that he resigned by letter dated July 5, 2021 without giving the contractual three months' notice and without paying salary in lieu of notice. The contract, terminable by three months' notice or three months' basic pay in lieu, obliged the respondent to pay Kshs.330,000/=; he forwent one month's salary (Kshs.110,000/=) and undertook in writing to pay the balance of Kshs.220,000/= but failed to do so. The respondent did not file a response, submissions or participate in the proceedings. The claimant's witness, the Human Resource Officer Tabitha Kimani, gave uncontroverted evidence. Counsel for the claimant relied on Frederick Kariuki Kamau v Bank of India, Martin Vindija Nyambuku v Mbukoni Logistics Limited and Gideon Mutiso Mutua v Mega Wealth International Ltd. The court framed two issues: whether the respondent was the claimant's employee, and whether the claimant was entitled to Kshs.220,000/=. Finding the employment relationship overwhelmingly established and the respondent's written admission of indebtedness unshaken, the court entered judgment for the claimant for Kshs.220,000/=, with costs and interest at court rates from the date of judgment until payment in full. Judgment was delivered virtually at Nairobi on November 15, 2023 pursuant to COVID-19 directions.

Key legal issues

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01

Existence of employment relationship

Holding

The uncontroverted evidence established that the respondent was an employee of the claimant under a contract dated August 1, 2020.

Reasoning

The claimant's uncontroverted evidence showed the parties entered a contract on August 1, 2020 engaging the respondent as a Mathematics Teacher at Kshs.110,000/= per month for a 2-year term, confirmed by the Human Resource Officer. The court found the evidence overwhelming on the employment relationship.

p. 3
02

Breach of notice clause and entitlement to pay in lieu of notice

Holding

The respondent breached clause 14.0 by giving one month's notice instead of three and leaving without paying the balance of two months' salary in lieu of notice, and being liable for Kshs.220,000/=.

Reasoning

Clause 14.0 required 3 months' notice or 3 months' basic pay in lieu. The respondent gave one month's notice, left immediately, forwent his July salary (Kshs.110,000/=) and undertook in writing to pay the balance of Kshs.220,000/= but never did. His written admission, failure to respond to demands and non-participation in the suit entitled the claimant to recover.

p. 3

Legal principles established

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  • An employee who fails to give the contractual notice or pay salary in lieu of notice is liable to the employer for the amount due under the contract of service, particularly where the indebtedness is admitted in writing.

Court orders

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  1. 1.Judgment entered for the claimant against the respondent in the sum of Kshs.220,000/=.
  2. 2.Costs of the suit to the claimant.
  3. 3.Interest at court rates from the date of judgment till payment in full.

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (3)

  • Frederick Kariuki Kamau v Bank of India
    (2015) eKLR
  • Martin Vindija Nyambuku v Mbukoni Logistics Limited
    (2016) eKLR
  • Gideon Mutiso Mutua v Mega Wealth International Ltd
    (2012) eKLR
Jurisdiction invoked
First-instance employment claim under the Employment and Labour Relations Court's jurisdiction (no specific provision 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, "Trustees of Premier Academy Charitable Trust t/a Premier Academy v Ocholah (Cause E179 of 2022) [2023] KEELRC 2892 (KLR)", Case Analysis (2023). Cause No E179 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2892/eng@2023-11-15

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