Ndikamire v St Hannah's Preparatory School Limited (Cause 1093 of 2018) [2023] KEELRC 3182 (KLR)
The bottom line
#A Nairobi court awarded a teacher Kshs 396,000 after finding his dismissal unfair because the school gave no notice, no hearing, and no proof of poor performance.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the termination of the Claimant's employment was for a valid and fair reason
- 2.Whether the termination followed fair procedure (notice and hearing)
- 3.Which reliefs, if any, the Claimant is entitled to
Key legal issues
#Validity of the reason for termination (poor performance)
The Claimant rebutted the allegation of poor performance; the Respondent, having not defended the claim, produced no material supporting it
The termination letter alleged poor performance. The Claimant attached KCSE results, a letter of confirmation and a recommendation letter showing satisfactory performance. The Respondent, though served with the claim and demand letter, did not enter appearance or file a defence, so no material supported the allegation. No warning for poor performance was ever issued, and the burden of proving poor performance lay on the employer.
Procedural fairness of the termination
The termination was procedurally flawed as no reason was advanced, no notice given and no disciplinary hearing conducted
Relying on sections 41, 43 and 44 of the Employment Act and the authorities cited, due process under section 41 is mandatory. The Claimant testified he was never warned or subjected to disciplinary proceedings. The reason for termination was found substantially unjustified and procedurally flawed, entitling him to notice pay and compensation.
Quantum of compensation for unfair termination
Eight months' salary awarded taking into account three years of service and the Respondent's failure to defend the claim
In exercising discretion on compensation, the court considered the length of service (three years) and that the Respondent, though served, never participated in the proceedings. Eight months' salary was deemed adequate compensation, alongside the certificate of service under section 51 of the Employment Act.
Legal principles established
#- Where poor performance is the reason for termination, the employer bears a high level of proof and must show it had a policy or practice for measuring performance
- The court does not closely audit the reason for termination but applies the reasonable employer test
Court orders
#- 1.One month's pay in lieu of notice of Kshs 44,000/=
- 2.Eight months' salary compensation for unfair and unlawful termination of Kshs 352,000/=
- 3.Total award of Kshs 396,000/=
- 4.Certificate of service (entitled under section 51 of the Employment Act)
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 disputes (Employment Act, 2007)
Relief refused
#Gratuity/service pay for 3 years (Kshs 132,000/=)
Claimant did not attach pay slips to show the Respondent never remitted NSSF
Overtime (evenings, mornings and public holidays) of Kshs 2,125,200.05
No timetable or documentary proof of the extra hours; testimony showed extra hours were not daily
Twelve months' compensation for unfair termination
Court awarded eight months instead, considering length of service and the Respondent's non-participation
Costs
No express costs order recorded in the judgment; Claimant had prayed for costs following the event under section 27 of the Civil Procedure Act
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.
In conclusion I find that the termination of Claimant’s service was unfair and he is entitled to compensation.
The prayer for service pay could only be allowed if the Claimant had attached his pay slip to illustrate that the respondent never remitted NSSF.
The Claimant has not attached any timetable before this court to show he was working on those extra hours including holidays.
In conclusion the Court awards the Claimant a. One month notice Kshs 44,000/= b. 8 months compensation for unfair and unlawful termination Kshs 352,000/= Total Kshs 396,000/=
Issues in the judgment
#Termination letter date inconsistency with receipt date
Judgment recites a reasonable-employer test but does not apply it to the findings
No express costs order in the final disposition despite the Claimant's prayer and submissions on costs
Prayer (a) labelled gratuity but treated in the determination as service pay
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndikamire v St Hannah's Preparatory School Limited (Cause 1093 of 2018) [2023] KEELRC 3182 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3182/eng@2023-12-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.