Marango v Board of Management S.C.L.P Samaj School & another (Cause 620 of 2017) [2024] KEELRC 1586 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the 2nd Respondent (the Principal) is a proper party
The 2nd Respondent is not a proper party as no cause of action was disclosed against him
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.
Whether the Certificate of Payment of Final Dues barred the claim
No; the discharge was limited to terminal dues and did not extend to claims relating to unfair termination
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.
Whether there was a valid reason for termination
No; the employer failed to discharge its evidential burden under Sections 43(1) and 45(2)
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.
Whether the termination was procedurally fair
No; Section 41 requires an oral hearing which was not afforded
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.
Legal principles established
#- 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
#- 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.Interest shall apply on the award above at court rates from the date of Judgment until payment in full
- 3.The Claimant shall also have the costs of the suit
- 4.The 1st Respondent shall issue the Claimant with a Certificate of Service within 30 days from the date of this Judgment
- Jurisdiction invoked
- First-instance employment claim under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.