Ongugo v Mombasa Parents Club (Cause E122 of 2024) [2025] KEELRC 2968 (KLR)
The bottom line
#A Mombasa court ordered Nyali School to pay its former deputy principal over Ksh. 1.67 million after evicting him and firing without due process.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was an unlawful and unfair termination of employment
- 2.Whether the remedies sought by the claimant should issue
- 3.Whether the counterclaim has merit
Key legal issues
#Whether constructive dismissal was properly before the court
Constructive dismissal was not pleaded by the claimant and could not be inferred; the court decided the case on the pleaded eviction and hostile work environment
Both parties argued constructive dismissal, but the memorandum of claim did not plead it or seek such a finding. Authorities establish that constructive dismissal must be specifically pleaded with the precise particulars compelling the employee to leave, allowing the court to make a finding. The claimant's pleaded case was eviction, threats and destruction of property.
Whether the employment was unfairly terminated
There was wrongful and unfair termination; the respondent placed the claimant in a hostile environment, evicted him, and failed to follow due process when alleging absconding
The respondent's own witnesses admitted ongoing tension and disruptions from 2022 to 2024, lending credence to the claimant's account of threats and eviction. The respondent alleged absconding, a gross misconduct under section 44(4)(a) of the Employment Act, but issued no notice or show-cause letter, denying the claimant due process under sections 35, 41 and 44.
Whether the remedies sought should issue
Notice pay, three months' compensation, leave travelling allowance and accrued gratuity awarded; claims for the unexpired contract term and allowances refused given mitigation
The claimant served one year (16 June 2023 to 18 June 2024). Under sections 45 and 49 of the Employment Act he was entitled to notice pay (Ksh. 265,000 gross) and three months' compensation (Ksh. 795,000). Having secured new employment and mitigated, further awards for the remaining contract term were unnecessary; gratuity accrued at Ksh. 572,400.
Whether the counterclaim has merit
The counterclaim for breach of contract, salaries paid, safe-opening costs and the laptop is dismissed; the respondent itself breached the contract
The respondent placed the claimant in an insecure and hostile work environment, breaching the employment contract and justifying the claimant's departure to new employment. Claims for breach of contract and for replacement of the door and safe cannot be justified. Only a condition that the claimant return the respondent's property before payment of dues was retained.
Legal principles established
#- A claim of constructive dismissal must be specifically pleaded with particulars and cannot be inferred
- An employee is entitled to a conducive and secure working environment, and breach thereof renders the employer liable
- An employer alleging absconding must issue a notice to show cause and follow due process under sections 35, 41 and 44 of the Employment Act
- An employee who loses employment should mitigate by securing new employment, which is an indicator of diligence
Court orders
#- 1.Declaration that employment terminated unfairly
- 2.Compensation of Ksh. 795,000
- 3.Notice pay of Ksh. 265,000
- 4.Leave allowance of Ksh. 40,000
- 5.Gratuity pay of Ksh. 572,400
- 6.Costs of the suit to the claimant
- 7.Counterclaim dismissed, save that the claimant shall return the respondent's property and be cleared before payment of dues
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act; first-instance claim and counterclaim
Relief refused
#Unpaid 24 months' house allowance, responsibility allowance, car expenses, entertainment allowance, non-practice allowance, health cover and unpaid portions of the contract term
Compensation awarded under section 49 of the Employment Act suffices given mitigation through new employment; health cover accrues only upon illness with no evidence of use
Claim for unused/health cover benefit
No evidence the claimant utilized or required the health cover benefit
Costs
Costs of the suit awarded to the claimant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, judgment is entered for the claimant against the respondent in the following terms:
a. Employment terminated unfairly, b. Compensation Ksh. 795,000. c. Notice pay Ksh. 265,000. d. Leave allowance Ksh. 40,000. e. Gratuity pay Ksh. 572,400. f. Costs of the suit.
g. The counterclaim is dismissed. Save, the claimant shall return the property of the respondent and be cleared before payment of his dues awarded above.
A claim of constructive dismissal must be specifcally pleaded. The particulars thereof must be outlined to allow the court to analyses and make a fnding.
The employee is entitled to a conducive working environment. Once there is a breach, the employer is lawfully liable.
There is no notice recalling the claimant to address the cause of his absence from work.
Securing new employment is an indicator of diligence and should be encouraged.
Issues in the judgment
#The judgment states an inconsistent date for the claimant's exit, referring to both '18 June 2924' (typographical error) and the employment end date of 18 June 2024
The judgment alternates between stating the new board directed the claimant to hand over on 28 March 2024 and 29 March 2024
The computation of gratuity contains a typographical error, 'ksh. 265 x 12 x 18/100 + Ksh. 572,400'
The respondent's witnesses are referred to inconsistently as 'Omar Badu and Ali Salim' against 'Omar Babu' and 'Ali Mohamed Salim' elsewhere in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ongugo v Mombasa Parents Club (Cause E122 of 2024) [2025] KEELRC 2968 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2968/eng@2025-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.