Maina v West Nairobi School (Petition E005 of 2021) [2024] KEELRC 466 (KLR)

The petition cited several constitutional articles but the body failed to demonstrate with precision how the Respondent's conduct infringed each article. Most reliefs related to the employment relationship rather than constitutional violations, and the court noted the suit could have been prosecuted more effectively as an ordinary cause with oral testimony.

The court adopted the definition of furlough as suspension without pay for a specified period and held that Kenyan law recognises unpaid leave only at the employee's instigation and by mutual agreement. Section 10(4) of the Employment Act requires consultation for variation of essentials; the Respondent unilaterally altered remuneration, a fundamental term, thereby repudiating the contract.

The Petitioner provided no evidence that he alone out of over 90 employees was furloughed or that the Director targeted him. The daughter's omission from the yearbook was admitted, an apology and amends offered (declined), and she was honoured to lead the National Anthem at commencement, suggesting inadvertence rather than design.

Applying the elements of legitimate expectation (clear representation, reasonableness, inducement by decision-maker, lawfulness), the court held the free-education benefit was an employment benefit available only while employment subsisted. Since the Petitioner treated the furlough as repudiation terminating the relationship, both the educational benefit and salary expectations fell away.

The court declined to qualify or sit on appeal on Justice Nzioki Wa Makau's orders of 27th January 2021, which directed the school to continue educating the daughter unconditionally. Upholding the counter-claim and set-off would undermine those orders. Constructive termination was by the Respondent, not the Petitioner.