Board of Management Yinthungu Mixed Day & Boarding Secondary School v Mutie (Employment and Labour Relations Appeal E008 of 2024) [2025] KEELRC 2488 (KLR)
The bottom line
#A Kenyan court cut a former accounts clerk's award from Kshs. 544,047 to Kshs. 96,000, but confirmed that advertising her job while she was still employed was unfair dismissal.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the respondent's employment was substantively and procedurally fair
The termination was unfair. The reason for terminating the accounts clerk position was not justified, the advertising of her position while in service amounted to constructive dismissal, and the process under section 41 of the Employment Act was not complied with.
The court re-evaluated the evidence under Selle v Associated Motor Boat Co. The show-cause letter of 29th May 2017 gave 14 days but termination of the position followed within 5 days, showing an arbitrary position by the Board. No disciplinary proceedings were held on the alleged insubordination before the termination or demotion. The academic papers issue only arose at interviews.
Whether the reliefs awarded by the trial court were appropriate
Some reliefs upheld (unpaid salary, notice pay), but compensation reduced to 10 months' salary, and severance pay, annual leave and underpayment awards set aside.
The trial court granted the maximum award without applying the section 49(4) criteria; the claimant had served slightly above 4 years and did not contribute to the termination. Severance pay applies only on redundancy. Service pay is excluded for NSSF members. School employees who take leave during school holidays cannot claim additional leave pay. Underpayment failed because the accounts clerk position is not in the Minimum Wages Order.
Whether the respondent proved unpaid salary for August 2018
Upheld at Kshs. 8,000. Once the respondent discharged her burden, the employer as custodian of employment records had to prove payment, which it failed to do.
The burden shifted to the employer to produce evidence that it had paid the salary claimed; no such evidence was tendered, so the trial court's award was upheld.
Legal principles established
#- An employer must prove both substantive fairness (valid and fair reason) and procedural fairness (hearing under section 41) for a termination to be fair under section 45(2) of the Employment Act
- Advertising an employee's position and recruiting another while the employee is still in service amounts to constructive dismissal
- An employee who is a member of NSSF is not entitled to service pay under section 35(5) and (6) of the Employment Act
- A court cannot condemn an employer for paying a wage for a position not regulated under the minimum wage orders
Court orders
#- 1.Judgment and decree of 14th February 2024 set aside and substituted
- 2.Termination held unlawful and unfair
- 3.Salary for August 2018 awarded at Kshs. 8,000
- 4.Notice pay awarded at Kshs. 8,000
- 5.Compensation for unfair termination equivalent of 10 months' salary, Kshs. 80,000
- 6.Total sum awarded Kshs. 96,000 plus costs with interest at court rate from date of judgment
- 7.Each party to bear own costs in the appeal
- 8.Stay of 30 days granted
- On appeal from
- Chief Magistrate's Court at Makueni (Employment and Labour Relations)
- ELRC Cause No. 6 of 2022
- Jurisdiction invoked
- First appellate jurisdiction over the Chief Magistrate's Court at Makueni Employment and Labour Relations Cause No. 6 of 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Board of Management Yinthungu Mixed Day & Boarding Secondary School v Mutie (Employment and Labour Relations Appeal E008 of 2024) [2025] KEELRC 2488 (KLR)", Case Analysis (2025). ELRC Appeal from Makueni Employment and Labour Relations Cause No. 6 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2488/eng@2025-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.