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ELRCDismissedNot stated in judgment (Memorandum of Appeal dated 20th June 2024)· [2025] KEELRC 795 (KLR)

Kiarie v Board of Management Nguku Secondary School (Employment and Labour Relations Appeal E013 of 2024) [2025] KEELRC 795 (KLR)

Employment and Labour Relations Court
12 March 2025
3,491 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court upheld a school secretary's dismissal because she never responded to a show-cause letter, though she must still receive her certificate of service.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Nyeri against the judgment of Hon Irura (SPM) delivered on 30th May 2024, which dismissed the appellant's claim for unlawful and unfair termination. The appellant was employed by the respondent school as Secretary/Typist from 15th January 2001 until her services were terminated by letter dated 31st October 2019, citing poor performance. She claimed a declaration of unfair termination, compensation, notice pay, allowances, gratuity, damages and a certificate of service. The appeal raised grounds that the trial magistrate erred in finding the termination fair despite the absence of a termination notice and of evidence proving the allegations against her. On appeal, the court applied Selle v Associated Motor Boat Company Ltd to re-evaluate the evidence. It found, first, that the allegations of dismal performance, lateness and insubordination constituted a valid reason warranting summary dismissal under section 44 of the Employment Act; secondly, that procedure was fair because the appellant was served with a show cause letter dated 24th October 2019 and her failure to respond meant she squandered her opportunity to be heard. Consequently, all reliefs failed except a certificate of service under section 51, which the court held was the only issue on which the trial court erred. The appeal was dismissed with costs, save for the order that a certificate of service be issued forthwith. Judgment was delivered virtually via Teams with the parties' consent, waiving Rule 28(3) of the ELRC Procedure Rules.

Key legal issues

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01

Validity of the reason for termination under sections 43 and 45 of the Employment Act

Holding

The termination was substantively fair; the allegations of dismal performance, lateness and insubordination constituted a valid reason amounting to a fundamental breach justifying summary dismissal under section 44.

Reasoning

The termination letter cited poor performance of the Receptionist/Typist office. Although the minutes did not show a formal performance evaluation, letters dated 24th October 2019 and BOM minutes of 17th October 2019 accused the appellant of dismal performance, lateness and failure to deliver a letter. The court was satisfied these allegations justified termination and warranted summary dismissal under section 44.

p. 7
02

Procedural fairness of the termination

Holding

The procedure was fair because the appellant was served with a show cause letter giving her an opportunity to respond, which she failed to utilise.

Reasoning

The employer was instructed by the BOM to take action against the appellant. She was afforded an opportunity to defend herself in writing by responding to the show cause letter dated 24th October 2019 but failed to respond, thereby squandering the opportunity to deny the allegations and to open an oral hearing. The court held such conduct bars the employee from raising the fairness issue in court.

p. 7
03

Reliefs payable on termination

Holding

All reliefs failed except a certificate of service under section 51 of the Employment Act, which the trial court erred in denying.

Reasoning

Having found the dismissal fair, compensation and notice pay were unavailable. Claims for underpayment, allowances and gratuity lacked particulars and evidential support; the appointment letter did not provide for gratuity. Aggravated and punitive damages were unjustified. The certificate of service is a statutory entitlement and the only relief granted.

p. 8

Legal principles established

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  • An employee who squanders the opportunity to respond to a show cause letter is barred from complaining in court that she was not heard before termination.
  • On a first appeal the court re-evaluates the evidence and draws its own conclusions, while making due allowance for not having seen or heard the witnesses.

Court orders

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  1. 1.The appeal is dismissed with costs save for the award of a certificate of service.
  2. 2.The respondent is to issue a certificate of service to the appellant forthwith.
On appeal from
Magistrates' Court (Employment and Labour Relations jurisdiction)
Not stated
Jurisdiction invoked
First appellate jurisdiction over the subordinate court (Employment Act claims appealed from the magistrates' 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, "Kiarie v Board of Management Nguku Secondary School (Employment and Labour Relations Appeal E013 of 2024) [2025] KEELRC 795 (KLR)", Case Analysis (2025). Not stated in judgment (Memorandum of Appeal dated 20th June 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/795/eng@2025-03-12

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