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ELRCPartially AllowedUnstated (appeal against Chief Magistrate's Court at Kilungu ELRC Cause No. E005 of 2023)· [2025] KEELRC 345 (KLR)

Board of Management, Isovya Secondary School v Salia (Appeal E016 of 2024) [2025] KEELRC 345 (KLR)

Employment and Labour Relations Court
13 February 2025
BOByram Ongaya
1,770 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a cook's unfair termination award because he admitted theft during a hearing, confirming employers who properly hear employees are protected.

What this practically means

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Executive summary

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The appellant school, represented by State Counsel from the Office of the Attorney General, appealed against a judgment of the Senior Resident Magistrate at Kilungu (ELRC Cause No. E005 of 2023) which found that a Cook employed from April 2011 to May 2022 was unfairly terminated and awarded him one month's notice pay, accrued leave pay, public holiday pay, six months' damages for unfair termination and overtime. The appeal challenged both the finding of unfair termination and the awards. The Court framed two issues: whether the termination was unfair, and whether the trial Court erred on the reliefs. On the first, the Court found the respondent's testimony contradictory and preferred the school's evidence: a theft allegation was made on 14.05.2022, the respondent absconded duty on 15.05.2022, and on 16.05.2022 he was heard in the Principal's office before witnesses and admitted the theft. Since he was heard and admitted the misconduct, no notice to show cause was required; the reasons satisfied sections 43 and 45 of the Employment Act and he contributed 100% to his termination. On reliefs, the Court held that damages for unfair termination could not issue on a fair termination, and the awards for accrued leave, public holidays and overtime were speculative and unsupported by evidence. Noting the trial Court had not awarded unpaid May 2022 salary or a certificate of service, but there being no cross-appeal, the Court allowed the appeal, set aside the trial judgment and decree of 06.09.2024, ordered each party to bear own costs of the appeal and the suit, and directed the Deputy Registrar to return the file to the Machakos Registry within three days.

Key legal issues

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01

Whether the termination was unfair

Holding

The termination was fair: the respondent absconded duty after a theft allegation, was heard on 16.05.2022 and admitted the theft, so no notice to show cause was needed and he contributed 100% to his termination.

Reasoning

The Court found the respondent's testimony contradictory (claiming he was stopped from working on 15.05.2022 yet testifying he left work on 16.05.2022). It preferred the evidence of the principal (DW1) and minutes showing a theft allegation on 14.05.2022, 20 students missing lunch, and the respondent's admission before witnesses on 16.05.2022. The separation was therefore for gross misconduct under sections 43, 45 and 44 of the Employment Act.

p. 3
02

Whether the trial Court's awards (notice pay, accrued leave, public holidays, unfair termination damages, overtime) were justified

Holding

All the challenged awards were set aside: damages for unfair termination could not issue on the finding of fair termination, and the awards for accrued leave, public holidays and overtime were speculative and unsupported by evidence.

Reasoning

The separation was upon gross misconduct attracting no or lesser notice under section 44. The reliefs for leave, holidays and overtime were 'empty allegations' with no particulars, no evidence of work done and no evidence of accrued leave. The Court also noted the trial Court had omitted unpaid May 2022 salary and a certificate of service, but there was no cross-appeal, and used that consideration in directing each party to bear own costs.

p. 4

Legal principles established

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  • Where an employee is heard and admits the alleged misconduct, there is no need for a subsequent notice to show cause; the employer satisfies sections 43 and 45 of the Employment Act on reason and fairness.
  • An employee who fully contributes to his termination cannot be awarded damages for unfair termination.

Court orders

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  1. 1.The appeal is allowed
  2. 2.Judgment and decree given by the trial Court on 06.09.2024 is set aside
  3. 3.Each party to bear own costs of the appeal and suit in the trial Court
  4. 4.The Deputy Registrar to return the case file to the Machakos Registry forthwith within three days
On appeal from
Chief Magistrate's Court at Kilungu (Hon. Okwengu Godfrey Lui, Senior Resident Magistrate)
ELRC Cause No. E005 of 2023
Jurisdiction invoked
First appellate jurisdiction over a subordinate court employment cause (Employment and Labour Relations Court) - no specific provision cited in the judgment

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, "Board of Management, Isovya Secondary School v Salia (Appeal E016 of 2024) [2025] KEELRC 345 (KLR)", Case Analysis (2025). Unstated (appeal against Chief Magistrate's Court at Kilungu ELRC Cause No. E005 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/345/eng@2025-02-13

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