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ELRCPartially AllowedNot stated in judgment

Ndikamire v St Hannah's Preparatory School Limited (Cause 1093 of 2018) [2023] KEELRC 3182 (KLR)

Employment and Labour Relations Court
5 December 2023
1,534 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court awarded a teacher Kshs 396,000 after finding his dismissal unfair because the school gave no notice, no hearing, and no proof of poor performance.

What this practically means

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Executive summary

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The Claimant, a teacher at the Respondent school in Karen, Nairobi, employed from July 2014 at a salary rising from Kshs 39,000 to Kshs 44,000, sued claiming he was terminated by a letter dated February 27, 2017 for alleged unsatisfactory performance. He pleaded that he served with distinction, received no warnings, and was never heard before termination. He sought gratuity, one month's pay in lieu of notice, overtime for early mornings, evenings and public holidays, twelve months' compensation for unfair termination, a certificate of service, costs and interest. The Respondent did not enter appearance or file a defence despite service, and the suit proceeded undefended. The Claimant testified and filed submissions relying on sections 41, 43 and 44 of the Employment Act and authorities on due process. The court held that it applies a reasonable-employer test to termination reasons, found the Claimant had rebutted the allegation of poor performance with his KCSE results, confirmation and recommendation letters, and that the undefended Respondent produced no material to support the allegation. It applied the high level of proof required of employers alleging poor performance. The termination was found unfair. The court awarded one month's notice pay (Kshs 44,000) and eight months' compensation (Kshs 352,000), totalling Kshs 396,000, plus a certificate of service under section 51 of the Employment Act. The service pay/gratuity prayer failed for want of pay slips proving non-remittance of NSSF, and the overtime claim failed for lack of documentary proof such as a timetable. Judgment was delivered virtually at Nairobi on December 5, 2023.

Questions the Court framed

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

  1. 1.Whether the termination of the Claimant's employment was for a valid and fair reason
  2. 2.Whether the termination followed fair procedure (notice and hearing)
  3. 3.Which reliefs, if any, the Claimant is entitled to

Key legal issues

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01

Validity of the reason for termination (poor performance)

Holding

The Claimant rebutted the allegation of poor performance; the Respondent, having not defended the claim, produced no material supporting it

Reasoning

The termination letter alleged poor performance. The Claimant attached KCSE results, a letter of confirmation and a recommendation letter showing satisfactory performance. The Respondent, though served with the claim and demand letter, did not enter appearance or file a defence, so no material supported the allegation. No warning for poor performance was ever issued, and the burden of proving poor performance lay on the employer.

p. 4
02

Procedural fairness of the termination

Holding

The termination was procedurally flawed as no reason was advanced, no notice given and no disciplinary hearing conducted

Reasoning

Relying on sections 41, 43 and 44 of the Employment Act and the authorities cited, due process under section 41 is mandatory. The Claimant testified he was never warned or subjected to disciplinary proceedings. The reason for termination was found substantially unjustified and procedurally flawed, entitling him to notice pay and compensation.

p. 3
03

Quantum of compensation for unfair termination

Holding

Eight months' salary awarded taking into account three years of service and the Respondent's failure to defend the claim

Reasoning

In exercising discretion on compensation, the court considered the length of service (three years) and that the Respondent, though served, never participated in the proceedings. Eight months' salary was deemed adequate compensation, alongside the certificate of service under section 51 of the Employment Act.

p. 4

Legal principles established

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  • Where poor performance is the reason for termination, the employer bears a high level of proof and must show it had a policy or practice for measuring performance
  • The court does not closely audit the reason for termination but applies the reasonable employer test

Court orders

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  1. 1.One month's pay in lieu of notice of Kshs 44,000/=
  2. 2.Eight months' salary compensation for unfair and unlawful termination of Kshs 352,000/=
  3. 3.Total award of Kshs 396,000/=
  4. 4.Certificate of service (entitled under section 51 of the Employment Act)

The bench

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

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007)

Relief refused

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Gratuity/service pay for 3 years (Kshs 132,000/=)

Claimant did not attach pay slips to show the Respondent never remitted NSSF

p. 4

Overtime (evenings, mornings and public holidays) of Kshs 2,125,200.05

No timetable or documentary proof of the extra hours; testimony showed extra hours were not daily

p. 4

Twelve months' compensation for unfair termination

Court awarded eight months instead, considering length of service and the Respondent's non-participation

p. 4

Costs

No express costs order recorded in the judgment; Claimant had prayed for costs following the event under section 27 of the Civil Procedure Act

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.

In conclusion I find that the termination of Claimant’s service was unfair and he is entitled to compensation.
p. 4Unfair termination finding
The prayer for service pay could only be allowed if the Claimant had attached his pay slip to illustrate that the respondent never remitted NSSF.
p. 4Burden of proof on service pay
The Claimant has not attached any timetable before this court to show he was working on those extra hours including holidays.
p. 4Proof of overtime
In conclusion the Court awards the Claimant a. One month notice Kshs 44,000/= b. 8 months compensation for unfair and unlawful termination Kshs 352,000/= Total Kshs 396,000/=
p. 4Final orders/disposition

Issues in the judgment

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minor

Termination letter date inconsistency with receipt date

minor

Judgment recites a reasonable-employer test but does not apply it to the findings

minor

No express costs order in the final disposition despite the Claimant's prayer and submissions on costs

minor

Prayer (a) labelled gratuity but treated in the determination as service pay

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, "Ndikamire v St Hannah's Preparatory School Limited (Cause 1093 of 2018) [2023] KEELRC 3182 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3182/eng@2023-12-05

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