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ELRCPartially AllowedNot stated in the judgment· [2024] KEELRC 1018 (KLR)

Kenya Union of Domestic Workers, Hotels, Educational Institutions and Hospital Workers Union(KUDHEIHA) v Board of Management - Mukumu Girl’s High School (Employment and Labour Relations Cause E014 of 2023) [2024] KEELRC 1018 (KLR)

Employment and Labour Relations Court
16 April 2024
JKJ.W. Keli
7,802 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld a school's dismissal of six non-teaching staff but ordered it to pay the terminal dues it had promised in its own letters.

What this practically means

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Executive summary

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A trade union representing non-teaching staff sued a school on behalf of eight grievants (later reduced to six) summarily dismissed after a tragedy at the school in which students and a teacher died in circumstances attributed to food poisoning. The claimant sought reinstatement, terminal dues and orders against unfair labour practices. The court heard the application and statement of claim concurrently and framed two issues: whether the grievants were unfairly terminated, and whether the reliefs sought were available. Applying sections 41, 43, 45 and 47(5) of the Employment Act and the reasonable-employer test, the court held that the respondent proved valid reasons on a balance of probabilities, the reasons relating to each grievant's conduct and the school's operational requirements of health and safety. Procedurally, show cause letters were issued, the grievants replied and were heard before the full Board with union representatives present whose representations were recorded, satisfying section 41. Reinstatement was refused because the termination was lawful, trust had broken down, and the positions had been advertised and filled. Leave, public holiday, overtime and salary arrears claims failed for lack of particulars, and maximum compensation was unavailable since the dismissal was fair. However, holding the respondent to the commitments in its own minutes and termination letters, the court ordered payment of notice pay and gratuity to each grievant within 30 days, treating the referenced 'severance pay' as intended gratuity, and directed unconditional issuance of Certificates of Service under section 51. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the Grievants were unfairly terminated from employment (substantive fairness)

Holding

The Respondent proved on a balance of probabilities valid reasons for termination related to the Grievants' conduct and the operational requirements of the school following the fatal food-poisoning incident.

Reasoning

Applying sections 43 and 45(2) of the Employment Act and the reasonable-employer test from British Leyland UK Ltd v Swift, the court found the reasons in the show cause and termination letters related to each Grievant's specific role. The deaths of students and a teacher created circumstances in which a reasonable employer would dismiss. The government report was not produced, but the reasons the employer genuinely believed to exist sufficed under section 43(2).

p. 11
02

Procedural fairness of the termination

Holding

The Respondent complied with section 41 of the Employment Act: show cause letters issued, Grievants heard before the full Board with union representatives present and their representations recorded.

Reasoning

All Grievants received show cause letters dated 2nd June 2023, replied, and appeared before the full Board on 26th June 2023. Union officials Thomas Mboya, Phelistus Omboche and shop steward Maximilla Avakala attended, and the shop steward's representations were recorded in the minutes. The Claimant's assertion that the union was not heard could not stand against this evidence.

p. 13
03

Whether the Claimant is entitled to the reliefs sought

Holding

Reinstatement refused; the court adopted the terminal dues promised in the Respondent's own termination letters, treated 'severance pay' as intended gratuity, and ordered unconditional issuance of Certificates of Service.

Reasoning

Termination being lawful, reinstatement failed; the trust relationship had broken down and positions were occupied. The Grievants gave no particulars for leave, public holidays, overtime or salary arrears. Because the Board's minutes and termination letters committed to pay gratuity and terminal dues, the court held the Respondent to those commitments, construing 'severance pay' as gratuity.

p. 15

Legal principles established

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  • An employer who commits in termination letters to pay terminal dues cannot go back on its word
  • Payment of gratuity is not mandatory unless a term of the contract
  • A Certificate of Service is a statutory right and must be issued unconditionally

Court orders

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  1. 1.Declared that the dismissal of the grievants Nobert Atanasi Indongolio, Rael Ongaya Andati, Mildred Mulionye Mutsami, Valence Nyabera, Stella Rophina Masanga, and Madeline Naliaka Mukhebi from employment by the Respondent was lawful and fair
  2. 2.Respondent to pay within 30 days: Nobert Atanasi Indongolio - Notice pay of Kshs. 19,320/- and gratuity of Kshs. 86,940/-
  3. 3.Respondent to pay Rael Ongaya Andati - Notice pay of Kshs. 11,200/-
  4. 4.Respondent to pay Mildred Mulionye Mutsami - Notice pay of Kshs. 26,622.40/- and Gratuity of Kshs. 292,846.40/-
  5. 5.Respondent to pay Valence Nyabera - Notice pay of Kshs. 26,622.40/- and gratuity of Kshs. 62,538.45/-
  6. 6.Respondent to pay Stella Rophina Masanga - Notice pay of Kshs. 26,620/- and Gratuity of Kshs. 66,550/-
  7. 7.Respondent to pay Madeline Naliaka Mukhebi - Notice Pay of Kshs. 25,500/- and a gratuity of Kshs. 12,750/-
  8. 8.Respondent to issue the Grievants their Certificates of Service pursuant to Section 51 of the Employment Act
  9. 9.Each party to bear own costs in the claim

Authorities

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Legislation

  • Constitution of KenyaArticle 41
  • Employment Act, 2007Section 40(1)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 42(1)
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45(2)
  • Employment Act, 2007Section 45(4)
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 49(4)
  • Employment Act, 2007Section 51

Cases cited (4)

  • Josephine M. Ndungu & others v Plan International Inc
    (2019) eKLR
  • British Leyland UK Ltd V Swift
    (1981) I.R.L.R 91
  • Kenya Airways Limited v Aviation Workers Union Kenya & 3 Others
    [2014] eKLR
  • Nelson Keshei V Narok County Government and another
    (2019)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 41 of the Constitution of Kenya and the Employment Act, 2007

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, "Kenya Union of Domestic Workers, Hotels, Educational Institutions and Hospital Workers Union(KUDHEIHA) v Board of Management - Mukumu Girl’s High School (Employment and Labour Relations Cause E014 of 2023) [2024] KEELRC 1018 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1018/eng@2024-04-16

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