Mutero v Secretary , BOM Kamacharia Girls Secondary School (Employment and Labour Relations Appeal E003 of 2024) [2025] KEELRC 250 (KLR)
The bottom line
#Kenya's ELRC ruled an Accounts Clerk's dismissal unfair because the school couldn't prove he received a proper disciplinary hearing notice.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the termination of the appellant's employment was grounded on valid and fair reason(s)
- 2.Whether the termination was done in accordance with a fair procedure
- 3.Whether the appellant is entitled to the reliefs sought in his Memorandum of Claim
Key legal issues
#Valid and fair reasons for termination
The respondent discharged its burden under section 43(1); the appellant admitted gaps and inefficiencies in his work as Accounts Clerk
The termination letter cited gross professional misconduct, specifically inefficiency and gaps in the appellant's work noted in the 2017 and 2019 auditors' reports. The appellant admitted the gaps and even sought redeployment. The court therefore found the reasons valid and fair without need to labour the point, since the appellant acknowledged his own mistakes.
Fair procedure under section 41 of the Employment Act
Termination was procedurally unfair: service of the 30th September 2019 summons letter was not proved, and the letter did not comply with section 41
There was no acknowledgment of receipt of the letter and no eyewitness proved service. Further, the letter did not state that termination was being considered, did not indicate a disciplinary hearing, and did not offer the statutory right to be accompanied by a fellow employee or union representative. Even if served, it would not have amounted to a valid hearing invitation.
Reliefs for unfair termination
The appellant is entitled to six months' gross salary as compensation under section 49, but not service pay or notice pay
Considering his 24 years of service, his contribution to the termination through misconduct, and reduced prospects of re-employment due to age, the court awarded six months' gross salary (Kshs.26,491 x 6 = Kshs.158,946). Service pay was barred by section 35(6) because of NSSF contributions, and notice pay was overtaken by the one month's notice given.
Legal principles established
#- An employer must prove service of the summons/show-cause letter and compliance with section 41 of the Employment Act before terminating on grounds of misconduct
- A letter that does not notify the employee of contemplated termination, does not indicate a disciplinary hearing, and does not offer the right to be accompanied does not satisfy section 41
Court orders
#- 1.Compensation for unfair termination of Kshs.158,946.00
- 2.The award is subject to statutory deductions but in addition to interest at court rates from the date of the judgment
- 3.Costs of the appeal and the court below plus interest at court rate
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court, Kangema
- ELRC Cause Number E001 of 2022
- Jurisdiction invoked
- First appellate jurisdiction over the Principal Magistrate's ELRC Cause
Relief refused
#Service pay of Kshs.327,748
The appellant was an NSSF contributor and is disqualified from claiming service pay under section 35(6) of the Employment Act
Salary in lieu of notice
The employer served the appellant with one month's notice dated 2nd January 2020 which lapsed on 3rd February 2020
Costs
Costs of the appeal and the court below plus interest at court rate, borne by the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Consequently, I find that the respondent never served the appellant with the letter dated 30th September 2019 to summon him to attend disciplinary hearing on 11th October 2019.
It follows that the respondent terminated the appellant’s employment unfairly because he was not accorded a fair opportunity to defend himself before the decision to terminate by notice was reached.
I allow the appeal to the extent highlighted above and enter judgment as follows: a. Compensation for unfair termination…………………Kshs.158,946.00
Issues in the judgment
#Judgment refers to 'the applicant' where 'the appellant' is meant in the service pay holding
Head-of-relief arithmetic inconsistency: service pay claimed as Kshs.327,748 but described as Kshs.13,239.50 x 24 years which equals Kshs.317,748
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutero v Secretary , BOM Kamacharia Girls Secondary School (Employment and Labour Relations Appeal E003 of 2024) [2025] KEELRC 250 (KLR)", Case Analysis (2025). ELRC Appeal (Memorandum of Appeal dated 18th March 2024) from Kangema PM's ELRC Cause No. E001 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/250/eng@2025-02-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.