Mackins v West Nairobi School & another

2. g. Loss of investment in Claimant at Flight Training Centre h. Exemplary damages i. A prohibition from deduction of Kshs. 8,750.00 from the Claimant salary j. The honourable court do issue such orders, and give such directions, as it may deem t to meet the ends of justice. k. The Respondents to pay the costs of the claim. l. Interest on the above monetary claims at court rates. The respondents led response dated 28th August 2024 admitting the employment relationship but denying unlawful termination. It is averred that the complaint’s contract was terminated through mutual agreement between herself and the respondent in a meeting held on 16th April 2024. It further that upon separation, the respondents were obliged to notify the Immigration Department to facilitate cancellation of her work permit. In the circumstances, it’s prayed for the suit to be discussed with counsel. Evidence 3. The complaint testied as CW1 and adopted her written statement dated 17th December 2024 as her evidence in chief. She then produced a bundle of document to exhibits to support her case. 4. In brief, her evidence was that she is a citizen of the United States of America and she was employed by the 1st respondent under a xed term contract dated 1st July 2023. The contract was to expire on 30th June 2025. She contended that the 1st respondent was a subsidiary of the 2nd respondent. 5. She stated that she had legitimate expectation to be in gainful employment until 30th June 2025 and therefore enrolled her son at Daystar University, and she also joined ight school. Her work permit was to last up to 25th September 2025 while her son’s student pass was valid until 23rd November 2025. 6. On 17th April 2024 she was summoned to an impromptu meeting by the 1st respondent’s Director Mr. Thomas Krol who informed her about a discussion that was held and a decision reached to release her before the expiry of the 2 years contract. In her view, the said decision amounted to unfair termination of her employer and intention to cancel her work permit without a valid reason and fair hearing. 7. She further averred that on 18th April 2024 the said Director sent an email to all the sta of the 1st respondent informing them that she will be moving from the school after the school year yet no reason for the termination had been communicated to her. Again, on 19th April 2024, another email was sent to the parents of the 1st respondent informing them that she would not be returning to the school and when some parents sought to know the reason, they were told that “she was just moving on”, which was not true. 8. She contended that on 27th April 2024 the Director notied her that her work permit would be cancelled on 30th June 2024 and the same would mean automatic cancellation of her son’s student visa. Her request for the reasons for the termination of her employment in writing was declined and the Director stated that he did not know what she planned to do with the written reasons. 9. She stated that a meeting was held on 5th May 2024 to discuss the issues surrounding her termination and the respondents sent her an email dated 16th May 2024 informing her that Kshs.8,750 would be deducted from the salary, being part of the cost of an order placed by the respondent’s IT department. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2586/eng@2026-09-28 2

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10. She contended that her rights to fair hearing were violated by the premature termination and cancellation of her work permit leaving her in a foreign country without livelihood. She contended that she was never accorded any hearing before the termination was decided but was only informed of a decision to terminate her services. 11. She contended that the meeting she attended on 17th April 2024 was convened after she requested for the same. She maintained that it was not a disciplinary hearing and no agreement to separate was discussed since the decision to terminate her had already been made and communicated. 12. She contended that the abrupt termination caused anxiety and stress to her and her son. As regards the purchase of lights, she contended that it was an order by the ICT department she did not approve the same. Besides the light were not for her personal benet. 13. On cross examination, she stated that the meeting on 17th April 2024 was a follow to the meeting held on the 16th April 2024 and she was rationalizing a decision that had already been made. She conrmed that her termination letter was given to her but there was a discussion for her to leave at the end of the academic year. 14. In the re-examination, she stated that she had no choice on what to do after as the decision to terminate her had been made. She explained that she used the phrase “I was not a t for the school” because everything she proposed was not accepted. 15. Mr. Thomas Krol, 1st respondent director testied as RW1. He adopted a written statement dated 28th April 2025 as his evidence in chief and produced 4 documents as exhibit. 16. In brief, his evidence was that on 16th April 2024, a meeting was held to discuss pertinent issues with respect to the claimant’s work in the previous months including lack of ideological alignment between her and the respondents. He stated that the claimant contended that the 1st respondent was stiing her independence and that she did not feel that parties were t for each other, further she stated that it was best that she looks elsewhere. 17. He stated that another meeting was held on 17th April 2024 to give the claimant an opportunity to respond to the concerns raised during the previous meeting. He contended that he proposed that instead of invoking the procedure of one-month notice, the claimant serves to the end of the school year. The meeting also discussed the need to inform the school fraternity and the claimant announced her departure to student on 19th April 2024. 18. He maintained that the termination was mutually agreed upon between the claimant and the 1st respondent. He further stated that upon the separation, it was procedure for the employer to notify the Immigration Department and therefore there was no malice. 19. He admitted that the claimant had raised her frustrations and on 17th April 2024 they agreed to a mutual separation but agreed to continue paying her salary, insurance cover and buy her air ticket back to USA. He contended that during the meeting on 17th April 2024, they agreed that the claimant would announce to the student after he sends an email to parents about her departure. 20. On cross-examination, he admitted that the claimant never submitted a written agreement for her exit. He also admitted that there was no signed separation agreement but contended that there were minutes duly signed. He mentioned that there was no termination by the respondent as no termination letter was issued. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2586/eng@2026-09-28 3

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Submission and Issues for Determination 21. After the hearing, both sides led written submissions. Having considered the submissions, pleadings and the evidence tendered, there is no dispute that the claimant was employed by the 1st respondent from 1st July 2023 to 1st July 2024 when they separated. The issues for determination are: a) Whether the claimant contract of employer was terminated by the respondent or through mutual separation. b) If the answer to (a) above is termination, whether the same was unfair and unlawful? c) Whether the relief sought should be granted? Termination or Mutual Separation. 22. The respondent alleged that the claimant left through mutual agreement reached on 16th April 2026 but the claimant maintained that she was just given a nal decision that her contract would be prematurely terminated. Under section 107 of the Evidence Act, the burden is upon the person who alleges the existence of facts. 23. There is no doubt dispute that a meeting occurred on 16th April 2024 between the claimant and representatives of the 1st respondent. However, the 1st respondent has not produced the minutes of the said meeting to support the alleged mutual agreement. Instead, produced the minutes of the meeting held on 17th April 2024 which in my considered view, do not support the alleged mutual separation. 24. A careful reading of the minutes reveals that the claimant was not given any other option than to exit despite her wish to continue working. In page 1 of the minutes Tom States: “ - Decision discussed yesterday was to release you from the 2- years contract. Referencing the contract clause 15.1 which discuss release from contract: requirements of 30 days’ notice.That puts you at May 16th but we are hopeful you’d like to nish the school year.” 25. The claimant responded, “denitely but on page 2 she stated her frustrations, about how contracts work, what would be next for her after the termination, if any job could be oered and what reason led to the termination. Tom responded that her heart and passion for work was evident but the reason for the separation was lack of alignment. 26. The above details from the minutes do not demonstrate a meeting of mind between the claimant and the 1st respondent. She was just bundled out of the oce on ground of lack of alignment. If at all there was any agreement to separate mutually, the minutes would expressly have been penned as such followed by a written agreement. 27. A mutual separation agreement must meet certain legal threshold. It must be voluntary, unequivocal, informed and supported by clear evidence of consensus between the employer and the employee. It is not enough to state that discussion took place or that the employee was agreeable to leaving employment. There must be proof of meeting of minds through a written separation agreement or other document conrming the employee’s voluntary exit. 28. The foregoing position was not the case herein and therefore I agree with the claimant that her contract was prematurely ended, not through mutual agreement, but through unilateral decision by the respondents as per her its wish. She was just informed of a decision that was made before the https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2586/eng@2026-09-28 4

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meeting of 16th April 2024. That fact was conrmed by Tom (RW1) in paragraph 5 of the minutes of the meeting of 17th April 2024 when he stated that: “ Decision discussed yesterday was to release you from the 2- year contract”. 29. In view of the foregoing matters, I nd that the respondents have failed to prove mutual separation on a balance of probability. Therefore, I hold that the 1st respondent unilaterally and unfairly terminated the claimant’s contracts one year before the agreed time. 30. Section 45(2) of the employment Act provides that:“ (2) A termination of employment by an employer is unfair if the employer fails to prove— (a) that the reason for the termination is valid; (b) that the reason for the termination is a fair reason— (c) 31. (i) related to the employees conduct, capacity or compatibility; or (ii) based on the operational requirements of the employer; and that the employment was terminated in accordance with fair procedure.” The foregoing provision is mandatory that, while the employer is free to terminate the contract of an employee, such decision must be grounded on valid reason, and fair procedure must be followed. The above local statute has domesticated the international labour standard as enacted in the ILO Convention 158. Article 4 and 7 stated that: “ Article 4 – the employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct or the operational requirement requirements of the undertaking, establishment or service. Article 7 – The employment of a worker shall not be terminated for reason related to the worker’s conduct or performance before he is provided an opportunity to defend himself against the allegations made, unless the employer cannot be expected to provide this opportunity.” Reasons for the Termination. 32. The respondents did not attempt to prove any reason for terminating claimant’s employment contract. When she asked for the reason during the meeting on 16th April 2024 Tom told her that it was lack of alignment while RW1 told this court that the termination was through mutual separation on 17th April 2024. No eort was made to prove the alleged lack of ideological alignment between the claimant and the respondents. RW1 did not produce any warning letter, for misconduct or poor performance. He also did not prove any targets that were agreed and not met. He also did not show that the claimant was placed under performance improvement plan and failed to improve. 33. Without evidence of misconduct or poor performance, the alleged lack of alignment or compatibility lacks basis. The alleged reason is not valid as it lacks supporting evidence. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2586/eng@2026-09-28 5

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Procedure Followed 34. Section 41 of the Employment Act provides: “ (1) Subject to section 42(1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop oor union representative of his choice present during this explanation. (2) Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1) make.” 35. The burden of proving that the above procedure was followed lies with the employer. RW1 never made eort to prove that he accorded claimant a fair hearing before the decision to terminate her services for lack of alignment, was made. The minutes of the meeting on 17th April 2024 are clear that the claimant was only called to the meeting to discuss a decision that had already been made, to end her contract before the time. 36. Even, if one was to assume that the meeting held on 17th April 2024 was a disciplinary meeting, the same would still fall below the expected legal threshold laid down under section 41 of the Employment Act. The claimant was not made aware that the meeting was a disciplinary hearing, she was not provided with any allegations, she was not informed of her right to be accompanied by another employee of her choice, and she was not provided with any evidence of the allegations levelled against her to prepare her defence. 37. In a nutshell the claimant contract of employment was unilaterally terminated by the respondents for a cause without giving her a fair opportunity to defend herself. This coupled with the fact that there was no valid reason that justied the termination, I hold that the termination was unfair and unlawful within the meaning of section 45 of the Employment Act of Kenya as read with Article 4 and 7 of the ILO convention 158 of 1982 on termination of employment. Reliefs 38. In view of the foregoing conclusion, I nd that the Claimant is entitled to declaration that the termination of her employment contract was unfair and unlawful as it violated her rights to dignity, fair labour practices and fair administrative action as enshrined under Article 28, 41 and 47 of the Constitution. Accordingly, I nd that she is entitled to relief under section 49(1) of the Employment Act being salary in lieu of notice. Clause 15.1 of her contract provided for termination notice of 30 days or payment of salary in lieu of notice. Since the employer extended her stay from on 27th April 2024 to 30th June 2024, I will not condemn it to pay salary in lieu of notice. 39. As regards compensation for the unfair manner in which the termination was done, I have considered the frustrations she faced including premature return to USA, discontinuation of her training in ight school and her son’s university, and nally the fact that she had to look for a new job abroad. Although she served for only one year, she was not served with any warning letter during her service. As such, I https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2586/eng@2026-09-28 6

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award her 4 months’ salary as compensation for the unfair and unlawful termination of her contract being USD 7576. 40. The rest of the compensatory reliefs sought are declined because I believe that the award of the USD 7576 is reasonable to cover the unfairness meted against her. 41. In conclusion, I enter judgment for the Claimant against the Respondents as follows: a. The termination of employment is declared unfair and unlawful b. Award for USD 7576 less statutory deductions. c. Costs of the suit plus interest at court rates from the date of the judgment. DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 28TH DAY OF SEPTEMBER, 2026. ONESMUS MAKAU JUDGE Kwega for Claimant Gashinga for Respondent https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2586/eng@2026-09-28 7

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