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ELRCPartially AllowedEmployment and Labour Relations Cause (memorandum of claim dated 7th October 2020)· [2025] KEELRC 1048 (KLR)

Kudheiha Workers v Apostles of Jesus Youth Technical Institute (Cause E626 of 2020) [2025] KEELRC 1048 (KLR)

Employment and Labour Relations Court
28 March 2025
JKJ. W. Keli
4,121 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 a teacher's firing for alleged theft was unfair because the employer held no hearing and couldn't prove the theft actually happened.

What this practically means

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Executive summary

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The Claimant union, KUDHEIHA Workers, sued on behalf of grievant Maulid Madjer Ogoya, a motor vehicle mechanic instructor employed by the Respondent institute from 1994, whose services were terminated by letter dated 30th July 2018 on the ground that he was caught stealing a small engine block and radiator used for training. The union claimed Kshs. 1,552,656 comprising notice pay, house allowance, underpayment, compensation for unfair termination, service gratuity, long service award and unpaid salary. The Respondent filed a preliminary objection on locus standi but abandoned it in submissions; the court held the objection was abandoned and proceeded to the merits. The court framed two issues: whether the termination was lawful and fair, and entitlement to reliefs. It found no procedural hearing was held and no valid reason proved: the director who allegedly caught the grievant gave no statement, the OB was not produced, the grievant was never arrested or investigated, and he continued teaching after the alleged theft. Applying sections 41, 43 and 45 of the Employment Act and following the Court of Appeal in Pius Machafu Isindu v Lavington Security Guards Limited, the court held the termination unlawful and unfair. On reliefs, the alleged CBA was not produced, so notice was awarded at Kshs. 15,000 under section 35; housing allowance of 15% of basic salary for three years (Kshs. 81,000) was awarded under section 31; six months' compensation (Kshs. 90,000) was awarded. Gratuity was refused as no CBA supported it and the grievant was under NSSF; other heads were unproved. Total award: Kshs. 186,000 plus costs and interest.

Key legal issues

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01

Whether the termination was lawful and unfair

Holding

Termination was substantively and procedurally unfair - no valid reason proved and no hearing granted

Reasoning

The employer alleged theft of a small engine block and radiator but produced no statement of the director who allegedly caught the grievant, no police abstract or OB, and no investigation. The grievant continued teaching and was never arrested. He was called from class and handed a termination letter without a disciplinary hearing. The court applied sections 41, 43 and 45 of the Employment Act and followed the Court of Appeal decision in Pius Machafu Isindu, holding the employer failed to discharge the burden on a balance of probability.

p. 7
02

Whether the claimant was entitled to the reliefs sought

Holding

Partially - notice pay, three years' housing allowance and six months' compensation awarded; gratuity and other heads refused

Reasoning

The alleged CBA providing four months' notice and gratuity was never produced in court, so notice was awarded at the contractual salary under section 35. Housing was found to be a basic condition under section 31 and the payslips showed no housing allowance despite entitlement to Kshs. 1,000 monthly, so 15% of basic salary for three years was awarded. Gratuity was refused as the grievant was under NSSF and no CBA was produced. Other heads were unproved and not submitted on.

p. 9

Legal principles established

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  • The employer bears the burden of proving valid and fair reasons for termination; failure to prove reasons renders termination unfair
  • Reporting a case of theft to the police does not relieve the employer of its obligation to grant procedural fairness under section 41 of the Employment Act
  • Gratuity is not payable absent a CBA providing for it where the employee is registered with NSSF

Court orders

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  1. 1.A Declaration is issued that the termination was unlawful and unfair
  2. 2.Notice pay of Kshs. 15,000
  3. 3.Housing pay Kshs. 81,000
  4. 4.Compensation equivalent of 6 months salary Kshs. 90,000
  5. 5.Costs and interest at court rates from date of judgment until payment in full

Authorities

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Legislation

  • Employment Act 2007sections 31, 35, 35(6), 41, 43, 45, 45(2), 47(5), 49
  • Labour Relations Act 2007sections 62, 65(1), 69(a)
  • Regulation of Wages (General) Order (CAP 234)housing allowance of fifteen percent of basic minimum wage
  • Churches and Institutions Associated With Them Collective Bargaining Agreement 2013-2017Part One Clause 1(d)

Cases cited (3)

  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Kenya Union of Domestic Workers, Hotels, Educational Institutions And Hospital Workers Union (KUDHEIHA) v BOM Lirhanda Girls High School
    (Employment and Labour Relations Cause 16 of 2023) [2023] KEELRC 2519 (KLR)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 and Labour Relations Act 2007 (dispute reported under sections 62 and 65(1) of the Labour Relations Act and certificate of unresolved dispute under section 69(a))

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, "Kudheiha Workers v Apostles of Jesus Youth Technical Institute (Cause E626 of 2020) [2025] KEELRC 1048 (KLR)", Case Analysis (2025). Employment and Labour Relations Cause (memorandum of claim dated 7th October 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1048/eng@2025-03-28

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