Akumu v Board of Management Njoro Boys High School

republicofkenyainthechiefmagistrate’scourtatnakuruemploymentandlabourrelationscausenoe264of202 1bensonotienoakumuclaimantversusbomnjoroboyshighschoolpondentjudgment and maintains that the termination was fair and justified. The matter proceeded to full hearing where both parties adduced evidence. B. CLAIMANT’S CASE 2. The Claimant was employed by the Respondent in the year 2000 as a night guard. He stated that during his employment with the Respondent, he was only given an appointment letter in 2003. That he was being paid Kshs. 1,800 per month. That in January, 2003, his monthly basic pay was increased to Kshs. 3,110/-. That he was given a promotion as a ground’s foreman in the year 2008. After 2 years, he got a further promotion to work as a chief security officer. That since his employment with the respondent, he was given 1 warning letter which at the time of his termination had already expired. That he was terminated on 19/02/2021 without being granted hearing. He denied having stolen the school properties as alleged. That before he was terminated, there was an allegation that some people had been found in the school forest. That it was during the Covid pandemic and the school had sold the trees to Timsales for use as timber and the school was having few security personnel at work while the Timsales security personnel were in the forest. That on that particular day, one Godwin, was the one who was on security duties. The Claimant Page 2 of 15

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republicofkenyainthechiefmagistrate’scourtatnakuruemploymentandlabourrelationscausenoe264of202 1bensonotienoakumuclaimantversusbomnjoroboyshighschoolpondentjudgment produced his witness statement and documents as part of his evidence herein. 3. The Claimant, in cross-examination, denied attending any Board of Management (BoM) meeting, neither was he invited. He further stated that he was not granted leave in the year 2020 because of the Covid pandemic and there being few security personnel in the school during that period. C. RESPONDENT’S CASE 4. The Respondent, through Mr. Ferdinand Wanyonyi, (the school bursar), admits the contract of employment and alleges that the Claimant was grossly negligent, insubordinative, and had stolen and sold trees belonging to the school to outsiders. That the school principal then suspended him with half pay. That the BoM then met and in the presence of the claimant, the charges were read to him, which he admitted and sought for leniency from the board. That the board nevertheless decided to terminate his employment and was paid all his arrears and entitlements. The Respondent did not however produce the minutes of the disciplinary meeting. Page 3 of 15

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republicofkenyainthechiefmagistrate’scourtatnakuruemploymentandlabourrelationscausenoe264of202 1bensonotienoakumuclaimantversusbomnjoroboyshighschoolpondentjudgment 5. The second Respondent’s witness was Samuel Mosonik, a driver with the respondent who stated that on an undisclosed date, at around 8.00pm, he was called by a colleague that some thieves were cutting down trees from the school forest. That he rushed there and met a Mr. Kiama who was the guard on duty at the main school gate. That they went with him to the scene of the incident where they found 3 suspects who had already been intercepted. That at that point, the claimant herein, who was also present at the scene, requested them to leave the matter with him. That the school bursar, DW1, nevertheless contacted the police who took over the matter. In crossexamination, he claimed that he was present during a disciplinary hearing that was held against the claimant herein. D. SUBMISSIONS 6. The Claimant, in his written submissions, emphasized that he was never issued with a valid notice of termination and was not afforded a fair hearing. He cited Section 41 of the Employment Act, arguing that the Respondent failed to follow the procedure and did not establish valid reasons for termination. E. ISSUES FOR DETERMINATION Page 4 of 15

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republicofkenyainthechiefmagistrate’scourtatnakuruemploymentandlabourrelationscausenoe264of202 1bensonotienoakumuclaimantversusbomnjoroboyshighschoolpondentjudgment 7. I frame the issues for determination herein as follows: a. Whether the termination of the Claimant’s employment was unfair. b. Whether the Claimant is entitled to compensation under Section 49 of the Employment Act. c. Whether the Claimant is entitled to gratuity. d. Whether the Claimant is entitled to payment for unpaid annual leave plus leave travelling allowance. F. COURT’S DETERMINATION I. Declaration of Unfair Termination 8. Section 45(2) of the Employment Act, 2007 provides that a termination is unfair if the employer fails to prove that the reason for termination is valid and fair and that the employment was terminated in accordance with fair procedure. 9. Further, Section 41 of the Act requires that before an employee is terminated on grounds of misconduct such as theft, the employer must explain the reasons for termination in the presence of another employee or union representative and allow the employee to make representations. Page 5 of 15

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republicofkenyainthechiefmagistrate’scourtatnakuruemploymentandlabourrelationscausenoe264of202 1bensonotienoakumuclaimantversusbomnjoroboyshighschoolpondentjudgment 10.It is therefore imperative that, even when the employer is eager to sanction an employee who has committed misconduct or gross misconduct, they ensure adherence to section 41(2) of the Act. This requires that the employee be issued notice and permitted to attend and make their representations. The Court of Appeal addresses the motions in the case of Oyombe v Eco Bank Limited (Civil Appeal 185 of 2017) [2022] KECA 540 (KLR) (13 May 2022) (Judgment), that; …Four elements must thus be satisfied for the summary dismissal procedure to be said to be fair, being: a. An explanation of the grounds of termination in a language understood by the employee; b. The reason for which the employer is considering termination; c. Entitlement of an employee to have a representative of his choice when the explanation of the grounds of termination is being made; d. Hearing and considering any representation made by the employee and the representative chosen by the employee. 11.The due process for gross misconduct is aptly summarized in the case of Chepkuto v Egerton University Investment Co Ltd [2024] KECA 1848 (KLR), which states that Section 44 of the Employment Act requires the employer to demonstrate that the employee's conduct reflects a fundamental breach of their contractual obligations. This Page 6 of 15

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republicofkenyainthechiefmagistrate’scourtatnakuruemploymentandlabourrelationscausenoe264of202 1bensonotienoakumuclaimantversusbomnjoroboyshighschoolpondentjudgment breach may arise from various actions or omissions listed in that section and related issues. Furthermore, Section 41 of the Act outlines the procedure for notification and hearing before termination on the grounds of gross misconduct. 12.Further, sections 41, 43, and 45 of the Employment Act are not only concerned with the presence of valid reasons or grounds for termination. They also require the employer to observe due process in handling the release of the offending employee. The employee must be informed of the accusations against him; given a chance to defend himself; permitted to call witnesses in support of his case; and notified of the decision taken by the employer to terminate his services, as held in Galgalo Jarso Jillo v Agricultural Finance Corporation [2021] eKLR). 13.In this case, there was no show cause letter. There was no evidence of the claimant being invited to a disciplinary hearing. No evidence, in the form of the minutes, was presented to prove that a disciplinary hearing occurred. There is thus no proof that the procedural safeguards under Section 41 were satisfied. Finding: The termination was substantively and procedurally unfair. Page 7 of 15

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republicofkenyainthechiefmagistrate’scourtatnakuruemploymentandlabourrelationscausenoe264of202 1bensonotienoakumuclaimantversusbomnjoroboyshighschoolpondentjudgment II. Compensation for Unlawful Termination 14.Under Section 49(1)(c) of the Employment Act, where termination is found to be unfair, the court may order the employer to pay the employee compensation not exceeding twelve months’ gross salary. In awarding compensation, the court is guided by Section 49(4), which sets out mitigating and aggravating factors including the employee’s length of service, conduct, the circumstances of dismissal, and attempts to mitigate loss. 15.The Claimant had served for over 20 years with only one warning on record. Considering the unfair manner of termination, lack of procedural fairness, and the financial hardship likely resulting from the dismissal, I find that an award of 12 months’ gross salary is appropriate. Award: Kshs. 32,660 x 12 = Kshs. 391,920 III Unpaid Leave Plus Leave Travelling Allowance 16.Section 28(1)(a) of the Employment Act provides that an employee is entitled to not less than twenty-one working days of leave annually. The burden of proving that leave was granted rests with the employer. Some leave forms were provided by the respondent but Page 8 of 15

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republicofkenyainthechiefmagistrate’scourtatnakuruemploymentandlabourrelationscausenoe264of202 1bensonotienoakumuclaimantversusbomnjoroboyshighschoolpondentjudgment none of them proves that the claimant went for leave in the year 2020. It was however confirmed and proved that the claimant went for leave in all the years except 2020. The suspension letter however confirmed that he did not attend work for the entire 12 months for the year 2020, as he was suspended on 31/08/2020. 17.Suspension from employment was however just but an administrative measure taken by the Respondent to remove the Claimant from the workplace, the school herein, for a given purpose. In this case the claimant was suspended on the grounds that there were on-going investigations, and disciplinary hearing, with regard to theft in the school. 18.At the end of the investigations and the hearing, the due process of the law requires that the employee be recalled back to work to answer to any allegations and be given a hearing or where not culpable be allowed to resume duty. The suspension must be addressed one way or the other. The claimant be called to answer to any charges/allegations or be returned to work. 19.In Kisumu ELRC Cause 295 of 2015 Gregory Otieno Owuoth v Mumias Sugar Company the Court held that; Page 9 of 15

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republicofkenyainthechiefmagistrate’scourtatnakuruemploymentandlabourrelationscausenoe264of202 1bensonotienoakumuclaimantversusbomnjoroboyshighschoolpondentjudgment The Respondent cannot put an employee on indefinite suspension against the provisions of its own regulations. If the Respondent was not ready to conclude the process within the prescribed period of 21 days it should have carried out its investigations and finalised them before sending the Claimant on suspension. Although it was not a formal punishment, an employee on suspension is saddled with the uncertainty of not knowing his fate. His self-esteem is punctured and his right to work is interfered with. Any disciplinary action must take the shortest time possible, otherwise it turns into punishment. 20.In Grace Gacheri Muriithi v Kenya Literature Bureau (2012) eKLR the court held that:The court considers that an employee on interdiction or suspension has a legitimate expectation that at the end of the disciplinary process he or she will be paid by the employer all the dues if the employee is exculpated. Conversely, if the employee is proved to have engaged in the misconduct as alleged and at the end of the disciplinary process the employee has not exculpated himself or herself, the court considers that the employee would not be entitled to carry a legitimate expectation to be paid for the period of suspension or interdiction. Thus, the court holds that whether an employee will be paid during the period of interdiction or suspension will depend upon the outcome of the disciplinary proceedings. It would be unfair labour practice to deny an employee payment during the period of interdiction or Page 10 of 15

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republicofkenyainthechiefmagistrate’scourtatnakuruemploymentandlabourrelationscausenoe264of202 1bensonotienoakumuclaimantversusbomnjoroboyshighschoolpondentjudgment suspension if at the end of the disciplinary process the employee is found innocent. Similarly, it would be unfair labour practice for the employer to be required to pay an employee, during the suspension or interdiction period if at the end of the disciplinary process the employee is found culpable. 21.In Francis Okumu Oketho v Buzeki Enterprises Limited [2019] eKLR the court held that:Ordinarily, suspension is a neutral action aimed at achieving unfettered investigations into allegations against an employee; it is not a disciplinary action. This means that an employee on suspension is entitled to full salary unless withholding of salary is sanctioned by a statute or internal disciplinary rules … 22.In this case, the claimant was sent on indefinite suspension and by a letter dated 19/02/2021, his employment was terminated. This was without being invited for a hearing to urge his defence or know the outcome of the alleged on-going investigations into the theft allegations. 23.On the evidence before court, termination of employment was without due process. Section 41 of the Employment Act, 2007 required the claimant be issued with notice setting out any allegations made against him and be given time to respond. Section Page 11 of 15

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republicofkenyainthechiefmagistrate’scourtatnakuruemploymentandlabourrelationscausenoe264of202 1bensonotienoakumuclaimantversusbomnjoroboyshighschoolpondentjudgment 43 of the Act required there be a valid reason resulting in the termination of employment. 24.His termination came in 2021, which means that he completed 12 months of 2020 while still in service. Clause (c) of the terms of employment as proved in CEXH No. 2 provides as follows: Leave: You will be entitled to 21 days annual leave with full salary after completion of each year. Leave may not be accumulated nor payment be made in lieu of leave. If your engagement is terminated by either party before the expiry of any year of service, you will have no right to leave in respect of that year. 25.I thus do find that he was entitled to the payment for the annual leave not taken in the year 2020. However, regarding leave travelling allowance, I do find that this is not a statutory but a negotiated benefit. However, the Court was not shown any contract, wage instrument or workplace policy, entitling the claimant herein to leave travelling allowance. I have myself gone through the Claimant’s letter of appointment and I have not found any clause therein providing for leave travelling allowance. As no other evidence was adduced justifying the same, I have no reason to award the same. Page 12 of 15

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republicofkenyainthechiefmagistrate’scourtatnakuruemploymentandlabourrelationscausenoe264of202 1bensonotienoakumuclaimantversusbomnjoroboyshighschoolpondentjudgment Award: Kshs. 32,660 divided by 26days, then multiplied by 21 leave days = Kshs. 26,379.23 IV Gratuity Claim 26.The Court of Appeal, in addressing the payment of gratuity to an employee in the case of Alsaidco Alarm Limited v Njeru [2023] KECA 1127 (KLR), determined that where there is evidence that the employer has paid contributions under social security, such as to NSSF, directing the employer to pay gratuity would violate the principle against double compensation. Since the Respondent was paying NSSF dues for the claimant's benefit, he was not entitled to pursue gratuity pay, which is gratuitous and at the employer's discretion. This position is reiterated in the case of Muchiri v Security Guards Services Limited [2024] KEELRC 1807 (KLR). Since the payslips produced by the claimant as Cexh. No. 3 prove that the Respondent was registered with National Social Security Fund and the Claimant was actively subscribed to the said Fund, I find that the Claimant is ineligible for service pay under Section 35(6)(d) of the Employment Act. I have further not found any contractual or statutory duty imposed on the Respondent herein to pay gratuity. Finding: Not entitled to gratuity or service pay. Page 13 of 15

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republicofkenyainthechiefmagistrate’scourtatnakuruemploymentandlabourrelationscausenoe264of202 1bensonotienoakumuclaimantversusbomnjoroboyshighschoolpondentjudgment G. FINAL ORDERS AND DISPOSITION 27.Having found in favour of the Claimant, judgment is entered against the Respondent as follows: 1. Declaration: The termination of the Claimant was unfair. 2. Compensation for unfair termination: Kshs. 391, 920/= 3. Unpaid leave: Kshs. 26, 379.23 4. Costs of the suit: Awarded to the Claimant IT IS SO ORDERED. DATED, SIGNED AND DELIVERED AT NAKURU THIS…15th…. DAY OF … September…2026. Hon. A.P. NDEGE Senior Principal Magistrate In the presence of; Claimant’s Counsel: N/A Respondent’s Counsel: Adomeyon Page 14 of 15

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republicofkenyainthechiefmagistrate’scourtatnakuruemploymentandlabourrelationscausenoe264of202 1bensonotienoakumuclaimantversusbomnjoroboyshighschoolpondentjudgment Adomeyon: Praying for 60 days stay. This is an institution and it will take a while before they arrange to be paid. CT: 60 days stay granted as prayed. Claimant: Page 15 of 15

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