Masaba v Board of Management, Eshibanze Muslim Secondary School & another (Employment and Labour Relations Cause E020 of 2023) [2024] KEELRC 2232 (KLR)
The bottom line
#Kenya's Employment Court upheld a teacher's dismissal over alleged misconduct with a student, confirming employers only need reasonable belief, not criminal-level proof.
What this practically means
#Executive summary
#Key legal issues
#Substantive fairness - whether there was a valid and fair reason for dismissal
The employer reasonably believed on a balance of probabilities that the claimant had a sexual relationship with a student; the reason for dismissal was valid
The court applied the reasonableness test from British Leyland v Swift. The student's initial statement admitted the relationship, the claimant sent an apology text to the principal and could not explain it, and he failed to cross-examine the student, her mother or the principal before the disciplinary panel. No criminal standard of proof applied; the employer only had to show reasonable belief in the misconduct, related to conduct and operational requirements under section 45(2) of the Employment Act.
Procedural fairness - whether a fair procedure was followed under section 41 of the Employment Act
The claimant was taken through a procedurally fair process - show cause, internal committee, full board, disciplinary panel hearing and review - and his objection to procedure was unsupported
The court traced the sequence of steps: statements collected, show cause letter issued and answered, internal disciplinary committee and full board appearances (accompanied by KUPPET officials), interdiction with 21 days to respond, disciplinary hearing on 11/5/2022 which the claimant attended and where he cross-examined some witnesses, and a review hearing on 9/11/2023. The claimant confirmed he was accorded an opportunity to ask questions, so the assertion of unprocedural termination was not supported.
Entitlement to reliefs - reinstatement, salary arrears, costs and interest
None of the reliefs was granted; the claim was dismissed
Reinstatement is discretionary and untenable where the reason for termination is valid and the employee was found to have committed an immoral act against a student. Salary arrears depend on reinstatement and therefore fail. Costs and interest were refused because the dismissal was valid, though the court tempered justice with mercy by making no order as to costs.
Legal principles established
#- Employment claims are civil and the standard of proof in disciplinary matters is on a balance of probabilities, not beyond reasonable doubt
- The test of reasonableness is what a reasonable employer would have done in the circumstances
- Reinstatement is discretionary, not automatic, and courts will not force parties in a personal employment relationship to continue against the will of one of them
- A termination must satisfy both substantive and procedural fairness
Court orders
#- 1.The Memorandum of Claim dated 9th November 2023 is held to be without merit and the suit is dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Employment and labour relations jurisdiction (Article 162(2) of the Constitution; Employment Act, 2007 invoked throughout the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Masaba v Board of Management, Eshibanze Muslim Secondary School & another (Employment and Labour Relations Cause E020 of 2023) [2024] KEELRC 2232 (KLR)", Case Analysis (2024). Employment and Labour Relations Court Claim dated 9th November 2023 (Kakamega). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2232/eng@2024-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.