Kenya National Union of Private School Teachers (Suing on behalf of Booker Otieno) v Shree Oshwal Community of Nakuru t/a Shah Lalji Nangpar Academy (Cause 87 of 2018) [2024] KEELRC 109 (KLR)
The bottom line
#A Kenyan court ruled a teacher's firing unfair because the school had no solid evidence and denied him a fair hearing, awarding Kshs. 673,200.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was fair in substance
The respondent had no genuine and reasonable grounds for the disciplinary action; the allegations of abandoning students rested on an unverified report by a headteacher who did not testify, with no parent, student or witness evidence
The charge was based on a report by Miss Jayne Gathuri who was not on the trip and relied on a verbal complaint from a parent who never recorded a statement or attended the disciplinary hearing. The allegedly abandoned student was never interviewed. No evidence from any parent or witness confirmed abandonment. The employer failed to investigate and gather adequate evidence, acting with haste, fiat, caprice and bad faith.
Whether the termination procedure adhered to natural justice
The procedure did not substantially adhere to rules of natural justice - the grievant was not informed of his right to a union representative, could not question his accusers, and the hearing was held at the FKE offices without explanation
The grievant was not told he could bring a union representative; the minutes showed no witness, co-worker or union representative accompanied him and no explanation was given. Miss Jayne Gathuri, who prepared the accusatory report, took the minutes, denying the grievant any chance to question her. No parent or witness was called to confirm abandonment. The hearing venue at the employers' umbrella body's offices created a perception of bias.
Whether the grievant was entitled to gratuity despite the alleged switch to a pension scheme
Yes - no evidence proved the change from the gratuity scheme; the alleged change was an unfair unilateral change and the grievant was awarded Kshs.280,800/= as pleaded
RW1 admitted he had no evidence that the gratuity scheme ended or was replaced by a pension scheme, and no evidence that employees were informed or consulted. Since the grievant served 19 years, placing him in the 15-20 year category payable at 50%, and the termination was unfair, the gratuity was awarded. Cases cited by the respondent were distinguished because gratuity was provided for in the contract.
Whether the claim for leave pay was sustainable
No - the grievant admitted taking school holidays as leave, produced no evidence of working 365 days a year, and the claim exceeded the three-year limitation period under Section 90 of the Act
The grievant admitted in cross-examination that the roughly eight weeks of school holidays each year constituted his annual leave. It was for him to prove he worked over the holidays, and no evidence was adduced. In any event, the claim covered a period beyond the three years preceding the cause of action permitted by Section 90 of the Employment Act.
Legal principles established
#- Fair termination has two critical components - substantive and procedural fairness
- An employer need not prove misconduct beyond reasonable doubt but the grounds for termination must be reasonable, genuine and based on due diligence
- Disciplinary hearings should be held at the workplace or neutral ground to avoid perception of bias against the employee
- A unilateral change of terms and conditions of service by an employer without evidence of consultation is unfair and unlawful
Court orders
#- 1.A declaration that the respondent unfairly and unlawfully terminated the claimant
- 2.The claimant is awarded Kshs.673,200/= (notice pay Kshs.43,600/=, gratuity Kshs.280,800/=, compensation Kshs.348,800/=)
- 3.The above amount shall earn interest at court rates from the date of judgment till payment in full
- 4.The respondent shall issue and deliver to the claimant a certificate of service within 30 days of the judgment
- 5.Costs of the cause and interest thereon to the claimant
- 6.All other reliefs denied and dismissed
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and Article 41 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya National Union of Private School Teachers (Suing on behalf of Booker Otieno) v Shree Oshwal Community of Nakuru t/a Shah Lalji Nangpar Academy (Cause 87 of 2018) [2024] KEELRC 109 (KLR)", Case Analysis (2024). Employment Cause (memorandum of claim filed 3rd April, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/109/eng@2024-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.