Kennedy Wakoto v Secretary Board of Management Chebukwa Secondary School; Kenya Tertiary and Schools Workers Union – Ketaswu (Interested party) [2021] KEELRC 47 (KLR)
The bottom line
#A Kenyan school's dismissal of its bursar was upheld, but the employer still had to pay half-salary during interdiction, notice pay, and leave arrears.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was lawful and fair
The dismissal was lawful and fair; the Claimant was heard by the Board and chose not to respond.
The Claimant absented himself on 10 May 2017 during an audit and did not explain his absence in evidence. He was invited by letter dated 25 July 2017 to a Board hearing on 1 August 2017 where charges were read and explained to him. He declined to respond, citing instructions from his advocate. The court held the employer substantially complied with sections 41, 43 and 44 of the Employment Act.
Whether interdiction without ½ salary was an unfair labour practice
Yes; the Claimant was awarded ½ salary for the two months of interdiction, Kshs. 20,228/-.
The Respondent's own witness confirmed the Claimant ought to have been paid ½ salary during the two-month interdiction but was not paid. The court found this failure to be an unfair labour practice and violation of employment rights, and quantified the award from the gross salary of Kshs. 20,228/-.
Whether claims for arrears were time barred
Claims predating three years before filing (1994 to 2014) were time barred under section 90 of the Employment Act; the within-period claims were assessed on their merits.
The Respondent invoked section 90 of the Employment Act limiting employment claims to three years. The Claimant did not respond to that provision in submissions. The court applied it, barring claims from 1994 to 2014, then examined the remaining claims for under payment, commuter allowance, house allowance and leave on the evidence.
Entitlement to notice pay
Notice pay of one month, Kshs. 20,228/-, awarded notwithstanding the summary dismissal.
The court held that under section 44(2) of the Employment Act the Respondent should have paid one month's notice pay upon summary dismissal, and awarded the same based on the gross salary shown on the July 2016 payroll.
Entitlement to leave pay
Leave arrears of 63 days (3 years) awarded at Kshs. 42,478.81.
The employer, obliged under section 74(1)(f) of the Employment Act to keep leave records, produced none. The claim was limited to three years by section 90. The court computed 63 days' salary at the gross monthly salary of Kshs. 20,228/- divided by 30 days times 63 days.
Entitlement to gratuity/service pay
Dismissed; the NSSF scheme excluded statutory service pay.
The Claimant did not demonstrate the contractual basis of gratuity. Section 35 of the Employment Act provides for service pay per year worked, but section 35(6)(d) excludes it where the employer contributes to NSSF. The payroll produced showed both employer and employee NSSF contributions.
Legal principles established
#- The reason for termination is what the employer believed to exist at the time of termination, under section 43(2) of the Employment Act.
- Substantial compliance with the hearing requirements of section 41 of the Employment Act renders a summary dismissal lawful and fair.
- Claims under section 90 of the Employment Act must be commenced within three years of the act complained of.
- Failure to pay ½ salary during interdiction constitutes an unfair labour practice.
- The obligation to keep leave records lies with the employer under section 74(1)(f) of the Employment Act; failing that, the employee's leave claim within the limitation period is awarded.
- Gratuity is not an automatic right; it flows from statute and terms of employment, and service pay does not apply where the employer contributes to NSSF.
Court orders
#- 1.Payment of ½ salary for the two-month period of interdiction at Kshs. 20,228/-
- 2.Payment of annual leave arrears for 3 years (63 days) of Kshs. 42,478.81
- 3.Payment of notice pay of one month at Kshs. 20,228/-
- 4.The amounts in items 1, 2 and 3 to be subject to statutory declarations
- 5.Claimant awarded costs of the claim and interest on the award amounts at court rates from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kennedy Wakoto v Secretary Board of Management Chebukwa Secondary School; Kenya Tertiary and Schools Workers Union – Ketaswu (Interested party) [2021] KEELRC 47 (KLR)", Case Analysis (2021). ELR Cause No. 14 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/47/eng@2021-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.