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ELRCPartially AllowedAppeal No 12 of 2020· [2025] KEELRC 1631 (KLR)

Rutto v Board of Management, Moi Kapsowar Girls Secondary School (Appeal 12 of 2020) [2025] KEELRC 1631 (KLR)

Employment and Labour Relations Court
29 May 2025
MOMaureen Onyango
4,732 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a school unfairly fired its worker because the employer could not prove valid reasons and a fair procedure.

What this practically means

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Executive summary

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This was a first appeal to the Employment and Labour Relations Court against the judgment of the trial magistrate in Iten ELRC No. 2 of 2019 dismissing the Appellant's claim for unfair termination and terminal dues. The Appellant, an assistant farm manager (also described as a cook), was suspended on 10th October 2016 on allegations of theft of maize, beans and milk. He appeared before the Board on 20th December 2016; his suspension was never lifted, and the Respondent later relied on a letter dated 15th February 2018 which it called a termination letter but which was framed as a show cause. The trial court dismissed his suit, finding he failed to prove his case on a balance of probabilities. On appeal, the court re-evaluated the evidence and held that the burden of proving a fair termination lies on the employer. It found the Respondent failed to prove valid reasons and fair procedure: there was no documented termination, no further hearing after the December 2016 board meeting, no proof the Appellant was recalled from suspension or that he absconded duty, and no evidence he was paid during suspension. The court held the trial magistrate had shifted the burden of proof onto the Appellant. It set aside the trial judgment, declared the termination unfair and unlawful, and awarded one month's notice pay (Kshs 10,223), 8 months' compensation (Kshs 81,784), salary during suspension (Kshs 153,345), gratuity to be computed by the Respondent, and a certificate of service within thirty days. Claims for leave dues, anticipated salary, overtime, reinstatement and lifting of the suspension were declined. The Respondent was ordered to meet the costs of the appeal.

Key legal issues

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01

Whether the termination of the Appellant's employment was for valid reasons and in accordance with fair procedure

Holding

The termination was unfair and unlawful; the Respondent failed to prove valid reasons or fair procedure.

Reasoning

The Appellant was suspended in October 2016, appeared before the board on 20th December 2016, and was then issued with a letter dated 15th February 2018 which was framed as a show cause rather than a termination. No termination letter existed, no further hearing preceded any decision to terminate, and there was a disconnect between the hearing, the 2018 letter and the alleged termination. The Respondent also failed to prove the Appellant was recalled from suspension or that he absconded duty.

p. 9
02

Whether the trial court shifted the burden of proof onto the Appellant

Holding

Yes; the trial court's findings that the Appellant did not follow up on his suspension and was paid during suspension were unsupported and wrongly shifted the burden of proof to the Appellant.

Reasoning

The court held that the trial magistrate's finding that the Appellant did not bother to find out why his suspension took so long impermissibly shifted the employer's statutory burden of proof. The findings that the Appellant was on pay during suspension and absconded duty were not supported by the evidence on record, particularly RW1's testimony that he was not paid during suspension.

p. 9
03

Entitlement to remedies for unfair termination

Holding

The Appellant was awarded notice pay, 8 months' compensation under section 49, salary during suspension, gratuity, and a certificate of service.

Reasoning

Having found unfair termination, the court exercised its jurisdiction under sections 35, 49 and 51 of the Employment Act. Compensation of 8 months' salary was awarded considering the six years of service and the section 49(4) factors. Salary during suspension was awarded because the Respondent tendered no evidence of payment, and the ambiguity after the disciplinary hearing justified the declaration that the Appellant was entitled to salary during suspension.

p. 10

Legal principles established

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  • The burden of proving that a termination of employment was fair rests on the employer, who must prove both valid reasons and fair procedure
  • Where an employer alleges that an employee absconded duty, it must demonstrate what action it took to contact the employee to report back to work
  • A first appellate court must re-evaluate the evidence and reach its own conclusion while making allowance for not having seen or heard the witnesses

Court orders

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  1. 1.A declaration that the termination of the Appellant was unfair and unlawful
  2. 2.Award of one month pay in lieu of notice of Kshs. 10,223
  3. 3.Award of 8 months' compensation for unfair termination of Kshs. 81,784
  4. 4.Award of salary during suspension of Kshs. 153,345
  5. 5.Award of gratuity to be tabulated by the Respondent based on the Appellant's monthly salary for the entire period of employment
  6. 6.The Respondent shall issue a Certificate of Service to the Appellant within thirty days of the judgment
  7. 7.The Respondent shall meet the costs of the Appeal

Authorities

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Legislation

  • Employment Actsection 44(3), 44(4)(a), (e) and (g)
  • Employment Actsection 45(1)
  • Employment Actsection 43
  • Employment Actsection 74
  • Employment Actsection 35
  • Employment Actsection 49, section 49(3)(a), section 49(4)
  • Employment Actsection 51
  • Employment and Labour Relations Court Actsection 12(3)(vii)

Cases cited (1)

  • Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates
    [2013] eKLR
On appeal from
Magistrates' Court (Iten ELRC No. 2 of 2019)
Iten ELRC No. 2 of 2019
Jurisdiction invoked
First appellate jurisdiction of the Employment and Labour Relations Court over the subordinate court's decision in Iten ELRC No. 2 of 2019

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, "Rutto v Board of Management, Moi Kapsowar Girls Secondary School (Appeal 12 of 2020) [2025] KEELRC 1631 (KLR)", Case Analysis (2025). Appeal No 12 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1631/eng@2025-05-29

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