Rigera & another v BOM Munithu Girls Secondary School (Cause E008 & E012 of 2023 (Consolidated)) [2024] KEELRC 2136 (KLR)
The bottom line
#A Kenyan school's dismissals of two long-serving staff were ruled unfair because the employer failed to prove valid reasons and skipped proper hearings, costing it over Kshs 1.3 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st Claimant's summary dismissal was for a valid reason
Only the allegation of insubordination (refusing to open the office and leaving with the keys) was substantiated; the other allegations failed as hearsay.
The principal, who was the complainant on allegations 1-4 and 6, was not called as a witness, so those allegations rested only on RW1's hearsay and were unsubstantiated. However, RW1 testified directly to the 1st claimant's defiance of the Board's lawful command. The court found the refusal to open the office and leaving with the keys proved on a balance of probability, amounting to insubordination justifying summary dismissal under section 44(4).
Whether the 2nd Claimant's dismissal was for valid and fair reasons
The respondent failed to prove valid and fair reasons for her dismissal.
The principal, her accuser, was not called as a witness and RW1's evidence was hearsay that did not shake her account. She was assigned the Accounts Clerk's duties without skills and then redeployed as Matron at lower pay without consultation, contrary to section 10(5) of the Employment Act. The court held the reasons cited were not valid and fair under sections 43(1), 45(2) and 47(5).
Whether fair procedure under section 41 of the Employment Act was followed
Neither claimant was accorded a fair hearing; both dismissals were procedurally unfair.
For the 1st claimant, the letter of 1st May 2020 was not addressed to anyone and there was no proof of service; the minutes did not reflect any disciplinary proceedings after the charges were read; and he had no opportunity to be accompanied. For the 2nd claimant, there was no proof of service of the hearing invitation, the agenda did not include her disciplinary hearing, and the Board's resolution was for termination with notice pay, yet a summary dismissal letter issued. Both dismissals thus breached section 41.
Entitlement to reliefs
Both claimants entitled to notice pay and compensation; 2nd claimant entitled to CBA gratuity; both entitled to certificates of service.
Having found the dismissals unfair, the court awarded salary in lieu of notice and compensation under section 49. The 1st claimant received 6 months' compensation given 18 years' service but his own misconduct contribution; the 2nd claimant received 12 months given 32 years of unblemished service. Gratuity was awarded to the 2nd claimant alone, as only her contract was governed by the CBA clause 31.
Legal principles established
#- Fair termination of employment requires both a valid reason and a fair procedure, including notification of charges and an opportunity to be heard.
- An employer must explain reasons for termination to the employee in the presence of another employee or union official and consider the employee's representations before terminating.
- Unsubstantiated allegations resting on the untested hearsay of a witness who is not the complainant cannot constitute valid reasons for dismissal.
- Redeployment or alteration of an employee's contractual terms requires prior consultation under section 10(5) of the Employment Act.
Court orders
#- 1.Judgment for the 1st Claimant, Phineas Kaimenyi Ringera: one month salary in lieu of notice Kshs 32,814.00; 6 months' salary as compensation Kshs 196,884.00; total Kshs 229,698.00; certificate of service; costs of the suit and interest at court rate from the date of judgment; award subject to statutory deductions.
- 2.Judgment for the 2nd Claimant, Isabella Kuri Kunga: one month pay in lieu of notice Kshs 24,905.00; 12 months' salary as compensation Kshs 298,860.00; gratuity for 32 years Kshs 796,960.00; total Kshs 1,120,725.00; certificate of service; costs of the suit and interest at court rate from the date of judgment; award subject to statutory deductions.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair and unlawful termination claims (Employment Act, sections 41, 43, 45, 47(5), 49 and 51)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rigera & another v BOM Munithu Girls Secondary School (Cause E008 & E012 of 2023 (Consolidated)) [2024] KEELRC 2136 (KLR)", Case Analysis (2024). Consolidated ELRC causes (consolidated on 6th February 2024) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2136/eng@2024-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.