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ELRCDismissedNot stated in the judgment excerpt

Chepkorir v Secretary, Board of Amangment Nasokol Mixed Day and Boarding Primary School (Cause E004 of 2022) [2023] KEELRC 1409 (KLR)

Employment and Labour Relations Court
9 June 2023
ANAbuodha J. N.
3,089 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld a school's dismissal of its accounts clerk, finding valid reasons and a fair disciplinary process.

What this practically means

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Executive summary

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The Claimant, employed by Nasokol Primary and Boarding School as a receptionist from 1992 and elevated to accounts clerk in 1996, claimed that her services were wrongfully terminated. She pleaded that she was not paid salary from May to December 2020 (COVID-19 period), suffered a salary reduction from Kshs.20,140 to Kshs.14,000 between March 2021 and January 2022, was verbally ordered to hand over and go home in February 2022, and was dismissed for gross misconduct on 17th May 2022 after disciplinary proceedings. She sought a declaration that the termination was illegal and various monetary reliefs totalling approximately Kshs.1.5 million, including notice pay, unpaid salaries, arrears, leave allowance for 26 years and severance pay. The Respondent denied the claims, contending that the Claimant failed to remit NSSF deductions resulting in a Kshs.9,000 penalty, threatened to kill the Head Teacher, refused to produce her credentials, and was afforded a fair hearing before the Board of Management. The Claimant testified that remitting NSSF was the Principal's responsibility and that she shared the Head Teacher's photographs for prayer purposes only. The court held that sharing photographs with strangers without consent was misconduct regardless of motive, that failing to ensure statutory remittances causing the employer a penalty was negligence, and that valid reasons existed and a fair procedure was followed. The court declined to re-analyze the employer's decision, applying a reasonable-employer test. The claim was dismissed with costs to the Respondent. Judgment was delivered virtually at Nairobi on 9th June 2023 by Abuodha J. N.

Questions the Court framed

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

  1. 1.Whether the Claimant's services were unfairly and unlawfully terminated
  2. 2.Whether there existed valid and fair reasons for the termination (failure to remit NSSF deductions, threatening the Head Teacher, failure to produce credentials)
  3. 3.Whether the termination followed a fair procedure
  4. 4.Whether the Claimant was entitled to the claimed unpaid salaries, salary arrears, notice pay, leave allowance and severance pay

Key legal issues

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01

Validity of the reasons for termination

Holding

Valid reasons existed: the Claimant was guilty of misconduct in sharing the Head Teacher's photographs with strangers without consent, and was negligent in failing to remit NSSF deductions causing the school to be penalised

Reasoning

The apology letter showed the Claimant admitted sharing the Head Teacher's photos, allegedly for prayer, which the court held was objectionable misconduct regardless of motive. The school was fined Kshs.9,000 for NSSF non-remittance, and the Claimant, as accountant, bore responsibility and never showed she raised the issue with management. Causing default on statutory deductions was held to be negligence.

p. 6
02

Fairness of the procedure followed

Holding

The termination followed a fair procedure; the Claimant was given opportunities to appear before the Board of Management

Reasoning

The Claimant appeared before the Board on 28th February 2022 regarding the threat issue (and was sent on leave for security reasons) and again on 13th April 2022 regarding the NSSF issue, at which the decision to terminate was made. The court found the process fair and declined to interfere with the employer's decision.

p. 7

Legal principles established

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  • The burden of proving unfair termination lies on the employee, while the burden of proving the reason for termination lies on the employer
  • The court does not re-analyze the employer's decision but asks whether a reasonable employer would have dismissed on similar circumstances
  • Reasons for termination must be facts that existed and which the employer genuinely believed

Court orders

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  1. 1.The claim is dismissed
  2. 2.The Claimant shall pay the Respondent's costs

The bench

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

AN
majority

Wrote the judgment

Jurisdiction invoked
First-instance employment and labour relations claim under the Employment Act (court's jurisdiction not expressly cited in the excerpt)

Relief refused

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Declaration that termination was illegal, unlawful and unfair, plus all monetary claims (notice pay, unpaid salaries, arrears, leave allowance, severance)

The court found valid reasons existed for the termination and that a fair procedure was used; the claim was without merit

p. 7

Costs

Claim dismissed with costs to the Respondent

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 Court therefore finds and holds that their existed valid reason for the termination of the Claimant's service and that the termination was arrived out using a fair procedure. The claim is therefore found without merit and is hereby dismissed with costs.
p. 7Disposition - dismissal of the claim
It is objectionable to share someone's photos for whatever reason, with strangers and without their consent regardless of the motive. The Claimant was therefore guilty of misconduct in that respect.
p. 6Misconduct in sharing photographs without consent
The concern of the Court is usually on whether a reasonable employer confronted with similar reasons or circumstances would dismiss. If the answer be in the afirmative the Court will not interfere.
p. 6Standard of court's review of employer's decision

Issues in the judgment

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minor

Case number and official citation are not stated in the judgment excerpt

material

Internal inconsistency in the judgment on the burden of proof: it states the burden of proving the reason for termination is on the employee, which appears to be a typographical error contradicting established allocation (employee proves unfair termination; employer proves reason)

minor

Inconsistent dates of employment in the judgment: the claim pleads 1992 and employment as accounts clerk in 1996, while the testimony records employment 'in 1993'

minor

Inconsistent gender pronoun for the Claimant in the testimony paragraph

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, "Chepkorir v Secretary, Board of Amangment Nasokol Mixed Day and Boarding Primary School (Cause E004 of 2022) [2023] KEELRC 1409 (KLR)", Case Analysis (2023). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1409/eng@2023-06-09

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