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ELRCPartially AllowedCause No 620 of 2017· [2024] KEELRC 1586 (KLR)

Marango v Board of Management S.C.L.P Samaj School & another (Cause 620 of 2017) [2024] KEELRC 1586 (KLR)

Employment and Labour Relations Court
21 June 2024
5,247 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a teacher was unfairly sacked because his school never gave him an oral hearing, awarding him four months' salary.

What this practically means

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Executive summary

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The Claimant, a teacher employed by the 1st Respondent from August 2013, sued for payment in lieu of leave, unpaid salary for August 2015, unpaid overtime, compensatory damages for unfair termination, and a certificate of service. He alleged he was dismissed in August 2015 without any disciplinary process and was condemned unheard. The Respondents asserted the dismissal was for poor performance, communicated through warning letters to which he never responded. The court framed four issues. First, it held the 2nd Respondent (the Principal) was not a proper party, being an agent of a disclosed principal with no cause of action against him. Second, applying Coastal Bottlers v Kimathi Mithika, it held that the Certificate of Payment of Final Dues was limited to terminal dues and did not bar a claim for unfair termination; expert handwriting evidence was treated as non-binding opinion evidence. Third, on substance, the termination letter cited only general dissatisfaction with performance without particulars, so the employer failed its evidential burden under Sections 43(1) and 45(2) of the Employment Act. Fourth, on procedure, no letter notified the claimant that termination was contemplated and no oral hearing was held; following Postal Corporation of Kenya v Andrew K. Tanui, the court held an oral hearing was mandatory under Section 41. The termination was thus unfair and unlawful. The court awarded four months' gross salary (Kshs 288,000) as compensatory damages with interest and costs, and ordered issuance of a certificate of service within 30 days. Claims for leave, August 2015 salary, and overtime were declined for lack of proof.

Key legal issues

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01

Whether the 2nd Respondent (the Principal) is a proper party

Holding

The 2nd Respondent is not a proper party as no cause of action was disclosed against him

Reasoning

The court found no cause of action against the Principal, who was merely an agent of a disclosed principal, the School's Board of Management. The dispute lay between the claimant and his employer, the 1st Respondent, making the claim against the Principal misconceived.

p. 5
02

Whether the Certificate of Payment of Final Dues barred the claim

Holding

No; the discharge was limited to terminal dues and did not extend to claims relating to unfair termination

Reasoning

Expert evidence that the claimant never signed the discharge was not decisive, as expert evidence is opinion evidence. Construing the discharge, the court held it covered only terminal dues and did not absolve the employer from claims for unfair termination, so the claimant did not waive his rights.

p. 6
03

Whether there was a valid reason for termination

Holding

No; the employer failed to discharge its evidential burden under Sections 43(1) and 45(2)

Reasoning

The termination letter cited general dissatisfaction with performance without particulars. Despite various warning letters raising different issues on different occasions, the employer failed to identify which constituted the reason for termination, making it impossible to evaluate whether the reason was valid and fair.

p. 7
04

Whether the termination was procedurally fair

Holding

No; Section 41 requires an oral hearing which was not afforded

Reasoning

No letter put the claimant on notice that termination was contemplated, and he was never invited to defend himself in any forum. Following Postal Corporation of Kenya v Andrew K. Tanui, a disciplinary hearing by correspondence cannot satisfy Section 41 where termination is contemplated; an oral hearing with a fellow employee present was necessary.

p. 8

Legal principles established

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  • A discharge voucher does not automatically bar an employee from making further claims; whether it does depends on its import and whether it was voluntarily executed
  • Section 41 of the Employment Act mandates an oral hearing before termination, which cannot be satisfied by an exchange of letters
  • The burden of establishing overtime hours rests with the employee, who must particularise the claim

Court orders

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  1. 1.The Claimant is awarded compensatory damages in the sum of Kshs 288,000.00 being equivalent to four (4) months of his gross salary
  2. 2.Interest shall apply on the award above at court rates from the date of Judgment until payment in full
  3. 3.The Claimant shall also have the costs of the suit
  4. 4.The 1st Respondent shall issue the Claimant with a Certificate of Service within 30 days from the date of this Judgment

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43(1)
  • Employment ActSection 45(2)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (11)

  • Gibson D.Mwanjala v Kenya Revenue Authority
    [2015] eKLR
  • CFC Stanbic Bank Limited v Danson Mwashako Mwakuwona
    [2015] eKLR
  • Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others
    [2019] eKLR
  • Kenya Revenue Authority v Menginya Salim Murgani
    [2010] eKLR
  • John M. Chamia & 6 others v Managing Trustee, National Social Security Fund & another
    [2012] eKLR
  • Constance Mwongeli vs Crowne Plaza
    ELRC Cause No. E981 of 2021
  • Coastal Bottlers Limited v Kimathi Mithika
    [2018] eKLR
  • Stephen Kinini Wang'ondu v The Ark Limited
    [2016] eKLR
  • Postal Corporation of Kenya v Andrew K. Tanui
    [2019] eKLR
  • Patrick Lumumba Kimuyu v Prime Fuels (K) Limited
    [2018] eKLR
  • Rogoli Ole Manadiegi v General Cargo Services Limited
    [2016] eKLR
Jurisdiction invoked
First-instance employment claim under the Employment Act, 2007

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, "Marango v Board of Management S.C.L.P Samaj School & another (Cause 620 of 2017) [2024] KEELRC 1586 (KLR)", Case Analysis (2024). Cause No 620 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1586/eng@2024-06-21

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