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ELRCPartially AllowedNot stated in judgment· [2025] KEELRC 156 (KLR)

Mitheu v Board of Trustees, Starehe Girls Centre (Cause 1692 of 2017) [2025] KEELRC 156 (KLR)

Employment and Labour Relations Court
31 January 2025
4,407 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a school unfairly fired its Sponsorship Officer and awarded her over Kshs. 811,000 because it skipped proper disciplinary steps.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent School in 2005 as a Secretary and promoted to Sponsorship Officer in 2011, served on periodic contracts invariably renewed until the last one ran from 1st January 2013 to 31st December 2014. Despite audit queries over sponsorship funds, the Respondent did not advise her of non-renewal; instead it granted her 35 days' annual leave from 2nd January 2015, signed by the Director and Bursar, and then handed her a termination letter dated 17th February 2015 citing gross misconduct. The Claimant had earlier been arrested, prosecuted for stealing by servant, and ultimately acquitted on 9th January 2023. The Court held that by conduct and prior practice of renewal over 9 years, she legitimately expected renewal, and that the contract was terminated effective 20th February 2015 when the letter was received. Termination was procedurally unfair: no show-cause letter or disciplinary hearing was convened, and two of the allegations had already been dealt with by a 2013 warning letter, amounting to double punishment. Substantively, the Respondent failed to prove the misconduct allegations, the Bursar and student witnesses not being called. Termination was declared unfair under Sections 41, 43 and 45 of the Employment Act. The Claimant was awarded compensation of 9 months' gross salary, gratuity as computed, notice pay, and unpaid salaries for January and February 2015, totalling Kshs. 811,383. The claim for leave allowance, constitutional damages, costs and interest was declined, the latter because the Respondent is a charitable institution. The Respondent's Counterclaim for Kshs. 144,230 and Kshs. 13,300 was dismissed as unsubstantiated.

Key legal issues

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01

Whether the contract was terminated or merely expired

Holding

The contract was terminated effective 20th February 2015 when the letter dated 17th February 2015 was handed to the Claimant

Reasoning

Although the last fixed-term contract ended on 31st December 2014, the Respondent had renewed it for 9 years, creating a legitimate expectation of renewal. The Respondent did not advise non-renewal but instead granted 35 days' annual leave signed by the Director and Bursar. The letter of 17th February 2015 did not merely note expiry; it detailed gross misconduct and advised clearance for terminal dues. Communication reached the Claimant on 20th February 2015, which is the effective date.

p. 6
02

Whether termination was procedurally fair

Holding

Procedural fairness failed under Sections 41 and 45 of the Employment Act

Reasoning

No show-cause letter was issued on three of the allegations, and the Claimant was never taken before a disciplinary forum. Two of the allegations had already been dealt with by a warning letter in 2013, and rehashing them amounted to double punishment. The termination letter was issued months after the alleged incidents, while the Claimant was still being treated as an employee on leave.

p. 7
03

Whether there were valid reasons justifying termination

Holding

The Respondent failed to substantiate the reasons under Section 43

Reasoning

Use of the personal m-pesa line was authorized by the Director since 2012. No parents or donors provided statements supporting the threats allegation. Copies of the raffle tickets were not exhibited and the students who sold them were not called. The Bursar, who could have explained the alleged plucked cash register pages, was not called as a witness. The criminal court's acquittal, though not binding, was noted.

p. 7
04

Whether the Respondent's Counterclaim was established

Holding

The Counterclaim for Kshs. 144,230 and Kshs. 13,300 was declined as unsubstantiated

Reasoning

The Counterclaim relied on the criminal charge of stealing by servant; the Claimant was acquitted. The m-pesa collections were authorized by the Director. The students who sold raffle tickets were not called and ticket copies were not exhibited, so the alleged retention of Kshs. 13,300 was not proved.

p. 8

Legal principles established

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  • The effective date of termination is the date the employee receives communication that the contract has been terminated
  • Reliance on previous practice is relevant in assessing whether termination was just and equitable
  • Punishing an employee in a later year for allegations already dealt with through a warning amounts to double punishment
  • Where no show-cause letter or disciplinary hearing preceded termination, procedural fairness under Sections 41 and 45 of the Employment Act fails

Court orders

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  1. 1.It is declared that termination of the Claimant's contract by the Respondent was unfair
  2. 2.The Respondent shall pay to the Claimant equivalent of 9 months' gross salary in compensation for unfair termination at Kshs. 336,996; gratuity over a period of 9.9 years as computed by the Respondent, at Kshs. 370,696; notice at Kshs. 37,444; January 2015 salary at Kshs. 37,444; and 20 days' salary for the month of February 2015, at Kshs. 28,803 – total Kshs. 811,383
  3. 3.The Counterclaim is declined
  4. 4.No order on the costs and interest
Jurisdiction invoked
Employment and Labour Relations Court, original jurisdiction over employment disputes under the Employment Act and Constitution Articles 28 and 29 (as pleaded)

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, "Mitheu v Board of Trustees, Starehe Girls Centre (Cause 1692 of 2017) [2025] KEELRC 156 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/156/eng@2025-01-31

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