Board of Management, Isovya Secondary School v Salia (Appeal E016 of 2024) [2025] KEELRC 345 (KLR)
The bottom line
#A Kenyan court threw out a cook's unfair termination award because he admitted theft during a hearing, confirming employers who properly hear employees are protected.
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 respondent's employment was unfair
- 2.Whether the trial Court erred in awarding the reliefs challenged in the memorandum of appeal
Key legal issues
#Whether the termination was unfair
The termination was fair: the respondent absconded duty after a theft allegation, was heard on 16.05.2022 and admitted the theft, so no notice to show cause was needed and he contributed 100% to his termination.
The Court found the respondent's testimony contradictory (claiming he was stopped from working on 15.05.2022 yet testifying he left work on 16.05.2022). It preferred the evidence of the principal (DW1) and minutes showing a theft allegation on 14.05.2022, 20 students missing lunch, and the respondent's admission before witnesses on 16.05.2022. The separation was therefore for gross misconduct under sections 43, 45 and 44 of the Employment Act.
Whether the trial Court's awards (notice pay, accrued leave, public holidays, unfair termination damages, overtime) were justified
All the challenged awards were set aside: damages for unfair termination could not issue on the finding of fair termination, and the awards for accrued leave, public holidays and overtime were speculative and unsupported by evidence.
The separation was upon gross misconduct attracting no or lesser notice under section 44. The reliefs for leave, holidays and overtime were 'empty allegations' with no particulars, no evidence of work done and no evidence of accrued leave. The Court also noted the trial Court had omitted unpaid May 2022 salary and a certificate of service, but there was no cross-appeal, and used that consideration in directing each party to bear own costs.
Legal principles established
#- Where an employee is heard and admits the alleged misconduct, there is no need for a subsequent notice to show cause; the employer satisfies sections 43 and 45 of the Employment Act on reason and fairness.
- An employee who fully contributes to his termination cannot be awarded damages for unfair termination.
Court orders
#- 1.The appeal is allowed
- 2.Judgment and decree given by the trial Court on 06.09.2024 is set aside
- 3.Each party to bear own costs of the appeal and suit in the trial Court
- 4.The Deputy Registrar to return the case file to the Machakos Registry forthwith within three days
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Kilungu (Hon. Okwengu Godfrey Lui, Senior Resident Magistrate)
- ELRC Cause No. E005 of 2023
- Jurisdiction invoked
- First appellate jurisdiction over a subordinate court employment cause (Employment and Labour Relations Court) - no specific provision cited in the judgment
Relief refused
#Substitution with a decree dismissing the claim (as prayed by the appellant)
The Court set aside the trial judgment but did not substitute a decree of dismissal; instead it noted the omitted awards and directed each party to bear own costs
Costs
Each party to bear own costs of the appeal and suit in the trial Court.
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.
The Court returns that the respondent fully contributed to his termination of employment at 100% and with respect the trial Court erred, upon the evidence on record, in returning a finding of unfair termination.
The trial Court erred in failing to consider the evidence that on 16.05.2022 the respondent was heard and he had admitted the alleged theft and absence from duty on 15.05.2022 and there was no need for a notice to show cause thereafter.
The claims remained empty allegations.
a. Judgment and decree given herein by the trial Court on 06.09.2024 is hereby set aside.
b. Each party to bear own costs of the appeal and suit in the trial Court.
Issues in the judgment
#The trial judgment is said to have awarded damages for unfair termination 'with reason that the respondent failed to attend a court hearing on 21.05.2024', which appears internally inconsistent with the reasoning elsewhere that the respondent was never given an opportunity for a hearing; the reason for the 6-month award as stated is unclear.
The judgment refers to 'the respondent was employed by the respondent as a Cook', apparently mislabelling the parties.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Board of Management, Isovya Secondary School v Salia (Appeal E016 of 2024) [2025] KEELRC 345 (KLR)", Case Analysis (2025). Unstated (appeal against Chief Magistrate's Court at Kilungu ELRC Cause No. E005 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/345/eng@2025-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.