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ELRCPartially AllowedELRC Appeal (Bungoma ELRC No. 1 of 2019, Memorandum of Appeal dated 27th April 2023)· [2024] KEELRC 648 (KLR)

Wanyonyi v Principal Kamusinde Secondary School & another (Employment and Labour Relations Appeal E010 of 2023) [2024] KEELRC 648 (KLR)

Employment and Labour Relations Court
14 March 2024
JKJ. W. Keli
6,218 words in judgment
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The bottom line

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A Kenyan court upheld a bursar's dismissal as fair, but ordered the school to pay his unpaid half-salary from the suspension period.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Kakamega against the judgment of Hon. G.P Omondi (PM) delivered on 5th April 2023 in Bungoma ELRC No. 1 of 2019, which dismissed the claimant's claim arising from his summary dismissal as Bursar of Kamusinde Secondary School. The appeal was canvassed by written submissions. The court, guided by the Selle principles, framed three issues: whether the appellant was constructively dismissed; whether the trial magistrate erred on substantive and procedural fairness; and whether the appellant was entitled to the reliefs sought. On constructive dismissal, applying the Coca-Cola East & Central Africa Ltd v Maria Kagai Ligaga principles, the court held the claim could not stand because the appellant never resigned; he was on suspension and the contract ended only through the summary dismissal letter of 8th July 2019. On fairness, the court found the allegations were communicated, the appellant responded in writing, was invited to a disciplinary hearing where a KUDHEIHA union representative attended, but he refused to attend in person and his advocate made no representations; the reasonable-employer test was satisfied and the trial court's finding of lawful and fair termination was upheld. On reliefs, the court held the trial magistrate was misdirected in rejecting all reliefs wholesale, but found most claims failed: house allowance (consolidated salary), leave dues, notice pay, severance and compensation. However, the respondents admitted unpaid half salary during suspension, and the court awarded Kshs. 104,340/- for January to 7th July 2019, payable within 30 days with interest thereafter. The trial judgment was set aside and substituted accordingly, with each party bearing its own costs in the appeal.

Key legal issues

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01

Whether the Appellant was constructively dismissed

Holding

No constructive dismissal; the Appellant never resigned and the contract was ended by summary dismissal

Reasoning

Applying the Coca-Cola principles, the court found the Appellant was on suspension, never tendered a resignation letter, and the employment relationship ended only through the summary dismissal letter of 8th July 2019. A claim of constructive dismissal requires the employee to resign within a reasonable time citing the employer's repudiatory conduct. The Appellant remained under suspension and could not claim constructive dismissal without ending the contract himself.

p. 7
02

Whether termination was substantively and procedurally fair

Holding

Yes; the trial magistrate's findings on substantive and procedural fairness were upheld

Reasoning

The reasons for suspension related to the Appellant's conduct as School Bursar and the employer's operational requirements. He was given the suspension letter stating allegations, appeared before a sub-committee, filed a written response, and was invited to a disciplinary hearing where a union representative attended. The Appellant refused to attend in person and his advocate made no representations. Applying the reasonable-employer test, no basis existed to disturb the trial court's finding.

p. 11
03

Whether the Appellant was entitled to the reliefs sought

Holding

Only half salary during suspension from January 2019 to 7th July 2019 (Kshs. 104,340/-) was awarded; all other reliefs failed

Reasoning

The trial magistrate erred by declining all reliefs wholesale on the basis that the termination claim failed; reliefs not tied to unfair termination had to be assessed independently. House allowance failed as salary was consolidated; leave dues failed for lack of particulars; notice pay and compensation failed as termination was fair; severance pay is only for redundancy. However, the Respondent admitted unpaid half salary for January to July 2019, which was awarded.

p. 13

Legal principles established

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  • The burden of proving constructive dismissal and unfair termination rests on the employee
  • An employee alleging constructive dismissal must terminate the employment by resignation within a reasonable time, citing the employer's conduct as the reason
  • Where an employee fails to issue notice of resignation, they remain in employment and the contract remains in force
  • First appellate court must re-evaluate the evidence and come to its own conclusions

Court orders

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  1. 1.Upheld the finding of the trial court that the termination of employment of the claimant was fair and lawful
  2. 2.Set aside the judgment of the lower court and substituted it with an order that the Respondent pay the Claimant unpaid half salary for January 2019 to 7th July 2019 in the sum of Kshs. 104,340/-
  3. 3.The awarded amount of Kshs. 104,340/- payable within 30 days failing which interest at court rates will apply from the date of judgment until payment in full
  4. 4.Each party to bear own costs in the appeal

Authorities

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Legislation

  • Employment ActSection 51
  • Employment ActSections 43 and 45
  • Employment ActSections 35(b), 36, 41, 45 and 51
  • Employment ActSection 78(a)
  • Employment ActSection 47(5)
  • Employment ActSection 43(1)
  • Employment ActSection 45(2), 45(4)(b)
  • Employment ActSection 44 (including 44(3) and (4))
  • Employment ActSection 40(1)(g)
  • Employment Act 2007Sections 43 and 45
  • ILO Convention No. 158 – Termination of Employment Convention, 1982Recommendation No. 166, Article 12

Cases cited (9)

  • Selle And Another V Associated Motor Boat Company Ltd & Others
    [1968] EA 123
  • David Kahuruka Gitau & Another v Nancy Ann Wathithi Gatu & Another
    Nyeri HCCA No. 43 of 2013
  • Coca-Cola East & Central Africa Limited v Maria Kagai Ligaga
    [2015] eKLR
  • Western Excavating (ECC) Ltd. -v- Sharp
    [1978] ICR 222 or [1978] QB 761
  • Nottingham County Council -v- Meikle
    (2005) ICR 1
  • Lear Shighadi Sinoya v Avtech Systems Limited
    [2017] eKLR
  • Josephine M. Ndungu & others v Plan International Inc
    (2019) eKLR
  • British Leyland UK LTD V Swift
    (1981) I.R.L.R 91
  • Francis Nyongesa Kwenyu v Eldoret Water and Sanitation Company Ltd
    (2017) Eklr
On appeal from
Bungoma (Principal Magistrate's Court, ELRC No. 1 of 2019)
Bungoma ELRC No. 1 of 2019
Jurisdiction invoked
First appellate jurisdiction over the trial magistrate's judgment in an employment claim

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Wanyonyi v Principal Kamusinde Secondary School & another (Employment and Labour Relations Appeal E010 of 2023) [2024] KEELRC 648 (KLR)", Case Analysis (2024). ELRC Appeal (Bungoma ELRC No. 1 of 2019, Memorandum of Appeal dated 27th April 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/648/eng@2024-03-14

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