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ELRCPartially AllowedCause No 1920 of 2017· [2024] KEELRC 2002 (KLR)

Mwithi (Legal Representative of the Estate of the Late Amos Mutegi Muchunku Nduyo) v St. Martins Girls Secondary School (Cause 1920 of 2017) [2024] KEELRC 2002 (KLR)

Employment and Labour Relations Court
31 July 2024
3,591 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a school unfairly terminated a sick employee's job, but awarded only modest damages because the family couldn't prove bigger claims.

What this practically means

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Executive summary

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The Claimant, the legal representative of a deceased Deputy Principal, sued the Respondent school over the termination of his employment on 19th March 2017 following his diagnosis with multiple myeloma in January 2017. The deceased had sought a one-month extension of sick leave; the Respondent declined by letter dated 15th March 2017, citing financial constraints, and directed him to hand over school property. The Respondent closed its case without calling any witness, leaving the suit effectively undefended, but the court reiterated that the Claimant still had to prove her case on a balance of probabilities. The court held that the 15th March 2017 letter was in substance the termination letter, that it gave no reason for termination, and that the Respondent failed to prove both substantive justification and procedural fairness under Sections 43, 45 and 41 of the Employment Act. However, most reliefs failed: the claim for reimbursement of Kshs.735,664 in medical expenses was declined because Section 34(1) does not allocate medical costs to employers and no reimbursement policy was proved; damages for discrimination and unfair treatment failed for want of particulars and comparative evidence; and service pay was rejected as the deceased was an NSSF member. The court awarded one month's salary in lieu of notice (Kshs.28,500) and four months' gross salary as compensation under Section 49(1)(c) (Kshs.114,000), totalling Kshs.142,500, plus a certificate of service and release of the deceased's personal effects within 30 days. Each party was ordered to bear its own costs. Judgment was delivered virtually at Nairobi on 31st July 2024 by Dr. Jacob Gakeri, Judge.

Key legal issues

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01

Validity of the reason for termination

Holding

The Respondent failed to demonstrate a valid and fair reason; the 15th March 2017 letter gave no reason

Reasoning

The letter of 15th March 2017 declining extension of sick leave was held to be the termination letter. It made no reference to any reason, allegation, or the employee's circumstances. Though the employer may have had a justifiable reason touching on the employee's capacity, none was stated, so substantive justification was not proved.

p. 6
02

Procedural fairness

Holding

No evidence that the Section 41 procedure was followed

Reasoning

Section 41 prescribes explanation of reasons, presence of a fellow employee or representative and consideration of representations, especially for incapacity cases. The Respondent adduced no evidence of any such process before termination, so the termination was procedurally unfair.

p. 6
03

Employer liability for medical expenses under Section 34(1)

Holding

Claim for reimbursement declined as Section 34(1) does not allocate medical costs to the employer

Reasoning

The court contrasted Section 34's silence on costs with Section 31's explicit housing obligation, noted the NHIF/SHIF compulsory contributory schemes and cost-sharing in public facilities, and found no reimbursement policy or agreement proved.

p. 6
04

Discrimination and unfair treatment

Holding

Not proved; no particulars or comparator evidence

Reasoning

The claim did not itemise particulars of discrimination or unfair treatment. Discrimination implicates a comparison, and there was no evidence that other employees were treated better regarding medical bills, aides or sick leave.

p. 8
05

Service pay

Holding

Rejected because the deceased was an NSSF member

Reasoning

Section 35(6)(d) disqualifies NSSF members from service pay. Salary vouchers showed NSSF deductions. Gratuity under the contract is distinct from statutory service pay, and the claim was unproven.

p. 7

Legal principles established

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  • For a termination to be fair it must be both substantively justified and procedurally fair
  • The burden of proving unfair termination does not lessen in an undefended suit
  • Discrimination requires a comparison showing different treatment based on description

Court orders

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  1. 1.One month's salary in lieu of notice Kshs.28,500.00
  2. 2.Equivalent of 4 months' gross salary as compensation Kshs.114,000.00 (total award Kshs.142,500.00)
  3. 3.Certificate of service to be issued
  4. 4.Personal effects of the deceased to be handed over to the legal representative within 30 days
  5. 5.Each party to bear their own costs

Authorities

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Legislation

  • Employment Act, 2007Section 34(1)
  • Employment Act, 2007Sections 35(5), 35(6)(d), 36, 41, 43, 44, 45, 47(5), 49(1)(c), 51
  • Constitution of KenyaArticles 159(2)(d), 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1
  • National Health Insurance Fund Act (repealed)Not specified
  • Social Health Insurance ActNot specified (2023)

Cases cited (12)

  • Ogada V Multimedia University of Kenya
    (2023) KEELRC 2973 KLR
  • Kollengode Venkatachala Laksminarayan V Intex Construction Ltd
    (2020) eKLR
  • Humphrey Munyithia Mutemi V Soluxe International Group of Hotels and Lodges Ltd
    (2020) eKLR
  • Monica Kanini Mutua V Al-Arafat Shopping Centre & another
    (2018) eKLR
  • Nicholus Kipkemoi Korir V Hatari Security Guards Ltd
    (2018) eKLR
  • Casmir Nyankuru Nyaberi V Mwikikar Agencies Ltd
    (2016) eKLR
  • Walter Ogal Anuro V Teachers Service Commission
    (2013) eKLR
  • Naima Khamis V Oxford University Press (E.A) Ltd
    (2017) eKLR
  • Pius Machafu Isindu V Lavington Security Guards Ltd
    (2017) eKLR
  • Postal Corporation of Kenya V Andrew K. Tanui
    (2019) eKLR
  • Peter K. Waweru V Republic
    (2006) KLR
  • Andrews V Law Society of British Columbia
    (1989) 1 SCR 321
Jurisdiction invoked
Original jurisdiction under the Employment Act, 2007 (Employment and Labour Relations Court)

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, "Mwithi (Legal Representative of the Estate of the Late Amos Mutegi Muchunku Nduyo) v St. Martins Girls Secondary School (Cause 1920 of 2017) [2024] KEELRC 2002 (KLR)", Case Analysis (2024). Cause No 1920 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2002/eng@2024-07-31

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