Board of Management Sipala Friends Boys High School v Dobister Nanjala

3. Aggrieved by the judgment, the Appellant through the Attorney General filed a memorandum of appeal dated 13th May 2025 seeking that the entire judgment and decree of the lower trial court be set aside and asking this court to substitute therefor an order dismissing the claim with costs. 4. The appeal is based on the following grounds – 1. THAT the Learned Trial Magistrate erred in law and fact in entering judgment against the Appellant. 2. THAT the Learned Trial Magistrate erred in law and fact in holding that the respondent was entitled to salary arrears of Kshs240,682/=. 3. THAT the Learned Trial Magistrate erred in law and fact in awarding the Respondent the sum of Kshs182,510/= as leave allowance against the Limitation period provided for under Section 89 of the Employment Act, 2007. 4. THAT the Learned Trial Magistrate erred in law and fact in failing to consider the appellant written submissions. 5. The Respondent opposed the appeal through Were Lukoko & Co. Advocates. 6. By consent recorded on 5th November 2025, the court directed that the appeal be canvassed by way of written submissions. Mr. Tarus for the Attorney General for the Appellant filed written submissions BUNGOMA ELRC APPEAL NO. E006 OF 2025 JUDGMENT 2

page 2 of 15

dated 4th December 2025 and, Mr. Were for the Respondent filed written submissions dated 10th November 2025. II. SUBMISSIONS BY COUNSEL 7. Counsel for the Appellant argued grounds 2 and 3 in support of the appeal. It was submitted that the trial court erred in awarding the Respondent the sum of Kshs240,682/= in salary arrears an award that was not based on her monthly salary as per the contract of employment in her capacity as a grounds-keeper. It was submitted that the trial court awarded the Respondent based on a salary of a store-keeper hence arriving at a wrong award. 8. It was further submitted that the claim for leave allowance awarded at Kshs182,510/= was time-barred under Section 89 of the Employment Act. It was further submitted that no reasons were given for the exaggerated award and that no breakdown of the same was pleaded or proved. 9. Counsel for the Respondent isolated the issues for determination as – Whether the Respondent was owed the salary arrears and, if the answer is in the affirmative, how much is owed; Whether the Respondent attended her leave days; and, Whether the Respondent’s claim on leave is limited by Section 89 of the Employment Act. 10. On the first issue, it was submitted that as at the time of her suspension from work the Respondent was a storekeeper at a basic monthly salary of Kshs9,634/=. It was submitted that the foregoing BUNGOMA ELRC APPEAL NO. E006 OF 2025 JUDGMENT 3

page 3 of 15

was proved by the evidence from the Appellant and more so the payroll at pg. 43 of the record of appeal. It was submitted that under the Regulation of Wages (General) (Amendment) Order, 2018 the basic monthly salary of a storekeeper was Kshs16,295/= as from 1st May 2018. It was further submitted that under the Regulation of Wages (General) (Amendment) 2019 the basic monthly salary of a storekeeper was Kshs18,251/= as from 1st May 2019. It was submitted that the awards made to the Respondent were based on this regulated salary. 11. It was submitted that applying the above rates from March 2021 to April 2022 the Respondent was owed Kshs93,254/= and then from May 2022 to February 2024 he was owed Kshs189,574/= making the total of Kshs282,828/= awarded by the trial court. 12. On the award of Kshs182,510/= in leave allowance, it was submitted that the Respondent testified that she did not take leave at any given time of her employment since 1997 while the Appellant’s case was that the Respondent took all her leave days and signed for the same. However, it was submitted that the Appellant did not avail any records confirming that indeed the Respondent took leave as claimed. Counsel cited Abigael Jepkosgei Yator V China Hanan International Co. Ltd (2018) eKLR to the effect that it is upon an employer to dislodge an allegation by an employee by way of BUNGOMA ELRC APPEAL NO. E006 OF 2025 JUDGMENT 4

page 4 of 15

availing employment records as the custodian thereof, failure whereof the claim by an employee should stand unchallenged. 13. It was submitted that a continuing injury is not limited to the threeyear period in Section 89 of the Employment Act, as long as the claim is filed within one year of the ceasing of the injury. Counsel cited Ishmael Otieno Ondigo V African Portland Cement Company Limited (2015) eKLR in support of this argument and also on the obligation placed on an employer to keep, avail, and produce employment records under Sections 10 and 74 of the Employment Act. III. ISSUES FOR DETERMINATION 14. The factual background of this matter has been set out by the parties and their respective counsel as per the summary in the preceding parts of this judgment. It is not in dispute that the Respondent was an employee of the Appellant from 1997 to 2024 when she was sent on suspension and the employment relationship was somehow paused. 15. The Respondent’s case in the lower trial court was that she was constructively dismissed through the indeterminate suspension. 16. The initial contract of employment between the parties, as filed by the Respondent with the claim in the lower court, dated 1st January 1997, indicated that she was engaged as “Grounds lady attached to store”. BUNGOMA ELRC APPEAL NO. E006 OF 2025 JUDGMENT 5

page 5 of 15

17. The Appellant pleaded that the Respondent had been suspended for disclosing confidential information to the public without authority, failure to submit store ledgers on time for auditing and, micromanaging the store by changing locks and keys thereto. 18. The Appellant further pleaded that subsequent to the suspension the Respondent was invited for a disciplinary hearing slated for 8th July 2024, but she declined to appear and instead filed the cause in the trial court. It was pleaded that the Respondent was neither terminated nor dismissed but she was only suspended pending the disciplinary hearing but she opted not to attend and instead filed the cause. 19. During the hearing in the lower trial court – pgs. 69-75 of the record of appeal – the Respondent reiterated the contents of her pleadings and stated that the Appellant failed to contact her after the suspension. She insisted that she did not receive the invitation to the disciplinary hearing. She stated that her last salary was Kshs18,000/=. 20. In cross-examination, the Respondent admitted that she had been paid salary arrears up to and including 2023. She stated that she was not a member of a trade union and that she was not issued with payslips. She admitted that she was not terminated but was suspended. 21. DW1 for the Appellant during the trial adopted his filed statement and the response to the claim. He stated that the Respondent was suspended vide a letter dated 14th February 2024 and was paid her BUNGOMA ELRC APPEAL NO. E006 OF 2025 JUDGMENT 6

page 6 of 15

monthly salary for that month. He stated that the Respondent was invited to a disciplinary hearing but she failed and or refused to appear and instead filed the cause in the trial court. 22. In the impugned judgment, the trial court found that the Respondent had not been dismissed and remained an employee of the Appellant and, that the claims based on the misconstrued constructive dismissal were misconceived. Further, the trial court found and awarded as per the awards set out in the introductory part of this judgment. The trial court found that the salary arrears claimed had been paid up to February 2023 plus the attendant house allowance. 23. In regard to salary arrears, the trial court stated that “The claim for salary arrears too is proved as there is no justification as to why the claimant used to earn a lower wage than the sum provided for by the Wage Order”. 24. The court has gone through the above summary of the evidence and findings by the trial court as it is important to relook and evaluate the same to arrive at the right conclusion and findings – see Selle V Associated Motor Boat Co. Ltd (1968) E.A 123. 25. It is in the foregoing context that the following issues commend themselves to this court for determination – a) What was the nature of the employment of the Respondent with the Appellant and what were the basic terms thereof? b) Is the Respondent still an employee of the Respondent? BUNGOMA ELRC APPEAL NO. E006 OF 2025 JUDGMENT 7

page 7 of 15

c) Did the trial court arrive at the right decision and awards? d) What orders should this court issue? e) Costs. VI. THE EMPLOYMENT 26. The parties agree that the employment relationship between them was initiated through a letter of appointment of the Respondent as a “Grounds Lady Deployed to the store” dated 1st January 1997. For all intents and purposes, the above title is confusing and the lower trial court did not make efforts to interpret what exactly the same entailed. 27. In my considered view, the title above did not and does not mean that the Respondent was engaged as a storekeeper or manager. She was engaged as a grounds lady but attached to the store. The court finds and holds that in absence of any other letter changing the status of the Respondent’s engagement, she remained a grounds lady throughout her engagement until the suspension vide a letter dated 14th February 2024. The Respondent did not avail any evidence of a letter or notice designating her otherwise. 28. The payroll availed during the trial by the Appellant – pg. 43 of the record of appeal – confirms that the Respondent’s gross salary was Kshs11,244/= as at the time of her suspension. The Respondent did not avail any document or evidence in rebuttal. BUNGOMA ELRC APPEAL NO. E006 OF 2025 JUDGMENT 8

page 8 of 15

29. It is therefore the finding and holding of this court that the Respondent was a grounds lady and that her last gross salary was Kshs11,244/=. VII. IS THE RESPONDENT IN EMPLOYMENT 30. The Respondent’s position, both in the trial in the lower court and in this appeal, is that she was constructively dismissed following the indefinite suspension. However, the trial court found that the Respondent was not terminated and remained an employee of the Appellant. This court has come to the same conclusion for the reasons following. 31. The Respondent was suspended from duty vide a letter dated 14th February 2024 that was in following terms – SIPALA FRIENDS BOYS HIGH SCHOOL P.O. BOX 123, 50205 WEBUYE TEL: 0723541180 EMAIL: sipalafriendsboyswebuye@gmail.com Our Ref: Your Ref: DATE: 14/02/2024 TO MRS. DOBISTER NANJALA RE: SUSPENSION FROM DUTY BUNGOMA ELRC APPEAL NO. E006 OF 2025 JUDGMENT 9

page 9 of 15

Following a full board of management meeting held on 10/2/2024, it was decided that you be suspended from duty effective from 14/2/2024. REASONS FOR SUSPENSION 1. Sharing confidential stores records with members of the public amounting to incitement of the community towards the school. 2. Failure to timely submit stores ledgers for purpose of auditing. 3. Micro, managing the school stores by changing the key and padlock to the stores without authority from the administration. You will be required to appear to the full boards as will be communicated to you. Yours faithfully, CHRISANTUS JUMA WANYONYI SNR. PRINCIPAL/SECRETARY B.O.M C.c: 1. CHAIRMAN B.O.M AMB. SIMON NABUKWESI 2. SECRETARY KUSSNTS KENYA UNION OF SECONDARY SCHOOLS NON-TEACHING STAFF BUNGOMA ELRC APPEAL NO. E006 OF 2025 JUDGMENT 10

page 10 of 15

32. It was and it remains the Appellant’s case that the above letter was followed with an invitation to the Respondent to attend a disciplinary hearing on 8th July 2024. The letter of invitation was in the following terms – SIPALA FRIENDS BOYS HIGH SCHOOL P.O. BOX 123, 50205 WEBUYE TEL: 0720016734 EMAIL: sipalafriendsboyswebuye@gmail.com DATE: 5/07/2024 OUR REF: YOUR REF: TO MRS. DOBISTER NANJALA RE: INVITATION TO APPEAR BEFORE THE BOARD OF MANAGEMENT You are hereby invited to appear before the Board of Management for Sipala Friends Boys High School on 8/7/2024 at 11 a.m. to defend yourself against the reasons that lead to your suspension as stated in your suspension letter and a written defense against each accusation. Welcome and keep time. Yours faithfully, BUNGOMA ELRC APPEAL NO. E006 OF 2025 JUDGMENT 11

page 11 of 15

FRANCIS JUMA CHIEF PRINCIPAL/BOM SECRETARY 33. The parties have contested the service of the above letter. While the Appellant maintained that after attempting to physically serve the same and upon the Respondent refusing to accept service, that the same was served via social media on WhatsApp, but the Respondent denied knowledge of the same. Due to the contradicting evidence, the truth is lost in-between and the court shall not dwell on whether the Respondent received the letter of invitation or not. 34. What is for certain is that as at the time of issuance of the notice, the Respondent had already filed her claim in the trial court on 21st June 2024 seeking for the reliefs set out in the introductory part of this judgment. It is also a fact that as at the time of the filing of the claim in the lower court, the Respondent was on suspension for about four months and had not been terminated or dismissed. It is also a fact, based on the evidence on record, that the Appellant was ready and willing to subject the Respondent to a disciplinary hearing based on the allegations/charges in the letter of suspension. However, that disciplinary process stalled upon the Respondent filing the cause in the trial court. 35. This Court agrees with the trial court that the Respondent rushed to file the claim in court to counter or preempt the disciplinary process BUNGOMA ELRC APPEAL NO. E006 OF 2025 JUDGMENT 12

page 12 of 15

that was imminent. The action in the lower court was thus premature and uncalled for and in abuse of the court process. The trial court ought to have either struck out the matter or stayed the same pending the disciplinary process. 36. The Court thus finds and holds that technically the Respondent remains an employee of the Appellant pending the completion of the disciplinary process that commenced with the suspension of the Respondent from work. VIII.RELIEFS 37. Clearly, the Respondent’s case in the lower trial court was based on the mistaken view that she had been constructively dismissed. That was a misapprehension as the suspension had been in place for four months as at the time of the filing of the cause in the trial court. In my considered view, four months was not an inordinate, unreasonable, or extended period as for the Respondent to assume that she had been constructively dismissed or terminated. More so considering that she had been an of the Appellant since 1997, a period of over 17 yrs. 38. A month later after filing the claim in court in June, in July 2024, the Appellant took the right direction and invited the Respondent for a disciplinary hearing. In my considered view, had the Appellant taken more than six months before inviting the Respondent for a BUNGOMA ELRC APPEAL NO. E006 OF 2025 JUDGMENT 13

page 13 of 15

disciplinary hearing, that may have been considered unreasonable, unfair, inordinate, and probably amounting to constructive dismissal. 39. This court finds and holds that the Respondent rushed in filing the matter in court before the disciplinary process was concluded. As noted above, the trial court ought to have either stayed the proceedings pending the conclusion of the disciplinary process or, struck out the same for having been filed prematurely and in abuse of the court process. 40. In the circumstances, the trial court arrived at the wrong conclusion in the foregoing regard and made awards based on the misapprehension that the Respondent was no longer an employee of the Appellant. 41. This Court finds and holds that it is not too late for the disciplinary process to be jumpstarted and concluded. The Court shall issue appropriate orders as hereunder. IX. ORDERS 42. In the circumstances, and for all the reasons cited above, the appeal shall succeed and the entire judgment of the lower trial court shall and is hereby set aside and substituted therefor with the following orders (i) It is hereby declared that the claim by the Respondent in the lower trial court was filed prematurely and in abuse of the court process. BUNGOMA ELRC APPEAL NO. E006 OF 2025 JUDGMENT 14

page 14 of 15

(ii) The judgment of the lower trial court and the decree therein are hereby set aside in their entirety and substituted with an order dismissing the cause. (iii) The Appellant is hereby ordered and directed to jumpstart and conclude the disciplinary process against the Respondent as soon as practically possible in accordance with the law. (iv) Upon conclusion of the disciplinary process, any party aggrieved shall be at liberty to approach a court for appropriate remedy. (v) Each party shall meet own costs in the lower trial court and in this appeal. DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 24TH DAY OF SEPTEMBER 2026. .................................... DAVID NDERITU JUDGE BUNGOMA ELRC APPEAL NO. E006 OF 2025 JUDGMENT 15

page 15 of 15