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ELRCDismissedNairobi MCELRC No. E003 of 2023 (appeal therefrom)· [2025] KEELRC 857 (KLR)

Ngaruiya v Chairman Board of Management, Toll Model Primary School (Employment and Labour Relations Appeal E265 of 2023) [2025] KEELRC 857 (KLR)

Employment and Labour Relations Court
14 March 2025
JKJ. W. Keli
3,879 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that a teacher's job ended lawfully because the government takeover of her school, not her employer, caused the termination.

What this practically means

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Executive summary

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The Appellant, a teacher engaged by the committee of Toll Model Primary School in January 2019, appealed against the dismissal of her claim for unfair termination by the trial magistrate (Hon. Joseph Were, SPM) on 7th December 2023. Her employment ended when the private school was taken over by the Government in 2021/2022 and TSC and County Government teachers took over teaching duties. She contended she was summarily dismissed without notice or a hearing; the Respondent maintained that notice was issued at a meeting of 8th November 2022, salary for December 2022 was paid in lieu of notice, and the termination resulted from the government takeover. The trial court had held that upon takeover, the Board of Management lost its employer mandate to the TSC and County Government, and that the Respondent was not the proper party to bear liability. On appeal, the ELRC applied section 45(2) of the Employment Act on the burden of proving fair termination, but found as a fact that this was not a normal termination but a consequence of the employer's takeover by government. The employer had foreseen the takeover, issued notice, paid an extra month's salary, and written to the Kiambu County Government seeking ECDE teacher deployment. Relying on Selle v Associated Motor Boat Co. and Mbogo v Shah, the court found no basis to interfere with the trial court's findings. The trial judgment was upheld, the appeal dismissed, and, to temper justice with mercy, each party ordered to bear its own costs in the appeal.

Key legal issues

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01

Whether the termination of the Appellant's employment was wrongful, unfair, irregular and unlawful

Holding

The termination was not a normal dismissal but a consequence of the government takeover of the school; the employer issued notice, paid salary in lieu, and was not at fault

Reasoning

The court found the school's takeover by government and the advent of TSC teachers undisputed. The employer had foreseen the takeover, issued notice at the 8th November 2022 meeting and paid an extra month's salary in December, and had written to the Kiambu County Government seeking ECDE teacher deployment. Under Article 237 of the Constitution and the Fourth Schedule, recruitment of teachers for public schools and pre-primary education fell to the TSC and County Government respectively, so the Board's employer mandate ceased. The Board could not be held responsible for the Appellant's fate.

p. 8
02

Whether the Appellant was entitled to the reliefs sought (notice pay, NSSF and NHIF contributions, general damages)

Holding

The reliefs failed because the appeal was dismissed and the trial court's dismissal of the claim upheld

Reasoning

Having found the termination lawful under section 35 of the Employment Act by notice, and agreeing with the trial court that holding the Respondent liable would be a miscarriage of justice in the circumstances of the takeover, the court found no basis to disturb the dismissal of the claim. Each party was ordered to bear its own costs in the appeal as a tempering of justice with mercy.

p. 8

Legal principles established

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  • Employment may lawfully be terminated under section 35 of the Employment Act by issuance of notice where the contract is terminable by either party by notice, including where termination results from a government takeover of the employer institution
  • An appellate court will not interfere with the exercise of discretion by an inferior court unless satisfied the decision is clearly wrong

Court orders

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  1. 1.The Judgment and Orders of the Honourable Joseph Were (SPM) delivered on 7th December 2023 in Nairobi MCELRC E003 of 2023 is upheld
  2. 2.The appeal is dismissed
  3. 3.Each party is to bear its own costs in the appeal

Authorities

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Legislation

  • Employment Actsection 45(2)
  • Employment Actsection 47(5)
  • Employment Actsection 35
  • Employment Actsection 44
  • Employment Actsection 41
  • Constitution of KenyaArticle 237
  • Constitution of KenyaFourth Schedule, Part 2 (9)
  • Teachers Service Commission Actsection 13
  • Basic Education Act

Cases cited (2)

  • Selle v Associated Motor Boat Co.
    [1968] EA 123
  • Mbogo v Shah
    [1968] EA 94
On appeal from
Chief Magistrate's Court, Nairobi (Employment and Labour Relations)
Nairobi MCELRC No. E003 of 2023
Jurisdiction invoked
First appellate jurisdiction over the Magistrates' Court employment and labour relations claim

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, "Ngaruiya v Chairman Board of Management, Toll Model Primary School (Employment and Labour Relations Appeal E265 of 2023) [2025] KEELRC 857 (KLR)", Case Analysis (2025). Nairobi MCELRC No. E003 of 2023 (appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/857/eng@2025-03-14

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