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ELRCPartially AllowedNot stated in the excerpt provided

Pius Mulongo v Principal St. Lukes Boys High School - Kimilili & another [2021] KEELRC 2001 (KLR)

Employment and Labour Relations Court
11 March 2021
1,894 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, employed by the respondent school as an office manager from 17 February 2000 until his dismissal on 16 June 2016, sued for declarations of unfair termination and attendant reliefs. He was suspended on 29 March 2016 over allegations of leaving work early and rudeness, then appeared before the Board of Management on 16 June 2016 where he was confronted with fresh allegations - including threatening to shoot the principal - for which he had no time to prepare, and was denied the company of a union representative. The respondent filed a statement of response and cross-examined the claimant but called no witness, leaving all material facts unrebutted. The court found the employer had failed to prove a valid reason and fair procedure as required by Sections 41, 43 and 45 of the Employment Act, holding the dismissal unlawful and unfair, aggravated by evidence of victimisation by the new principal. The claimant was awarded 10 months' salary (Kshs.124,000) as compensation under Section 49(1)(c), considering his 10 years of service, non-contribution to the dismissal, and the Freight in-Time precedent. Service pay of Kshs.62,000 (15 days' salary per year under Section 35(5) and (6)) was awarded given non-remittance of NSSF. Claims for notice pay and underpayment were dismissed for want of proof, notice pay having been admitted as paid. Total award: Kshs.186,000 with interest at court rates and costs of the suit.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the dismissal of the claimant was for a valid and fair reason
  2. 2.Whether the dismissal followed a fair procedure under Section 41 of the Employment Act
  3. 3.What remedies, if any, the claimant is entitled to

Key legal issues

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01

Whether the termination violated Sections 41, 43 and 45 of the Employment Act

Holding

Yes — the dismissal was procedurally unfair and substantively unjustified; the claimant's unrebutted testimony was accepted.

Reasoning

The claimant was suspended on stated allegations but at the Board hearing was ambushed with fresh allegations for which he had no time to prepare, and was denied a union representative. The employer, though cross-examining the claimant, called no witness, leaving all material facts unrebutted. The burden under Sections 43 and 47(5) was therefore not discharged, and the dismissal was unlawful and unfair.

p. 3
02

Quantum of compensation and service pay

Holding

Ten months' salary as compensation under Section 49(1)(c) and service pay equivalent to 15 days' salary per completed year under Section 35(5) and (6).

Reasoning

The claimant served 10 years, lost employment on false allegations and did not contribute to the dismissal. Considering the Freight in-Time decision reducing 12 months to 6 months for a shorter-serving employee, the court awarded 10 months. NSSF non-remittance was proved, entitling the claimant to service pay.

p. 3

Legal principles established

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  • An employee facing a disciplinary hearing is entitled under Section 41(1) of the Employment Act to be accompanied by a representative of his choice; denial of this renders the process unfair.
  • The employer bears the burden of proving both a valid reason for dismissal and a fair procedure; failure to adduce evidence is fatal to the employer's case.

Court orders

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  1. 1.Compensation of Kshs.124,000 (10 months' salary)
  2. 2.Service pay of Kshs.62,000
  3. 3.Total award of Kshs.186,000 with interest at court rates from date of judgment till payment in full
  4. 4.Costs of the suit to the claimant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 41, 43, 45 and 49 of the Employment Act, 2007 (first-instance employment claim)

Relief refused

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Payment in lieu of notice (Kshs.12,400)

Admitted in cross-examination that one month's salary in lieu of notice was already paid; claim abandoned

p. 2

Underpayment for the entire period of service

Not proved; claimant admitted he did not explain the underpayment

p. 3

Costs

Costs of the suit awarded to the claimant

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The testimony by the claimant having not been rebutted, the Court finds that the dismissal of the claimant violated Sections 41, 43 and 45 of the Employment Act, and the dismissal was therefore unlawful and unfair.
p. 3Unfair dismissal - Burden of proof on employer
Section 41(1) of the Employment Act, provides that an employee faced with a disciplinary offence be permitted to have a representative of choice at the hearing. This did not take place in this case.
p. 3Right to representation at disciplinary hearing
In the final analysis judgment is entered in favour of the claimant against the respondent as follows: (a) Compensation – Kshs.124,000. (b) Service pay - Kshs.62,000.
p. 3Final orders / disposition

Issues in the judgment

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minor

Duplicate paragraph numbering - two paragraphs numbered 21

minor

Apparent date errors in the warning letters list ('13/3/2015, 13/6/2013' against a 2016 suspension letter) and an implausible date '12/20/2015'

minor

Case number and full party names are not stated in the judgment text

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Pius Mulongo v Principal St. Lukes Boys High School - Kimilili & another [2021] KEELRC 2001 (KLR)", Case Analysis (2021). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2001/eng@2021-03-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.