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ELRCPartially AllowedELRC Appeal (Memorandum of Appeal dated 18th March 2024) from Kangema PM's ELRC Cause No. E001 of 2022

Mutero v Secretary , BOM Kamacharia Girls Secondary School (Employment and Labour Relations Appeal E003 of 2024) [2025] KEELRC 250 (KLR)

Employment and Labour Relations Court
4 February 2025
3,259 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Nyeri against the judgment of the Principal Magistrate at Kangema (Hon. Mutegi PM) delivered on 8th March 2024 in ELRC Cause No. E001 of 2022, which dismissed an unfair termination claim with costs. The appellant, an Accounts Clerk employed from 1995 to 3rd February 2020, was dismissed for gross professional misconduct following auditor findings of financial impropriety in 2017 and 2019. Guided by Selle v Associated Motor Boat Company Ltd, the court re-evaluated the evidence on the three issues it framed: valid reasons, fair procedure, and reliefs. It found the reasons for termination valid since the appellant admitted gaps in his work, discharging the employer's burden under section 43(1) of the Employment Act. However, on procedure, the court found no proof of service of the letter dated 30th September 2019 summoning him to a Board hearing on 11th October 2019, there being no acknowledgment of receipt or eyewitness. Even if served, the letter did not satisfy section 41: it did not state that termination was under consideration, did not indicate a disciplinary hearing, and did not offer the right to be accompanied. The termination was therefore procedurally unfair. The court awarded six months' gross salary as compensation under section 49 (Kshs.158,946), but refused service pay because the appellant contributed to the NSSF under section 35(6), and refused pay in lieu of notice as one month's notice had been given. The appeal was allowed to that extent, with costs of the appeal and the court below to the appellant.

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 appellant's employment was grounded on valid and fair reason(s)
  2. 2.Whether the termination was done in accordance with a fair procedure
  3. 3.Whether the appellant is entitled to the reliefs sought in his Memorandum of Claim

Key legal issues

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01

Valid and fair reasons for termination

Holding

The respondent discharged its burden under section 43(1); the appellant admitted gaps and inefficiencies in his work as Accounts Clerk

Reasoning

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.

p. 5
02

Fair procedure under section 41 of the Employment Act

Holding

Termination was procedurally unfair: service of the 30th September 2019 summons letter was not proved, and the letter did not comply with section 41

Reasoning

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.

p. 6
03

Reliefs for unfair termination

Holding

The appellant is entitled to six months' gross salary as compensation under section 49, but not service pay or notice pay

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.Compensation for unfair termination of Kshs.158,946.00
  2. 2.The award is subject to statutory deductions but in addition to interest at court rates from the date of the judgment
  3. 3.Costs of the appeal and the court below plus interest at court rate

The bench

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

majority

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

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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

p. 7

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

p. 7

Costs

Costs of the appeal and the court below plus interest at court rate, borne by 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.

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.
p. 5Burden of proving service of disciplinary summons
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.
p. 6Procedural fairness under section 41
I allow the appeal to the extent highlighted above and enter judgment as follows: a. Compensation for unfair termination…………………Kshs.158,946.00
p. 7Final orders

Issues in the judgment

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minor

Judgment refers to 'the applicant' where 'the appellant' is meant in the service pay holding

minor

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

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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, "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.