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ELRCDismissedNot stated in judgment (Memorandum of Appeal dated 20th June 2024)

Kiarie v Board of Management Nguku Secondary School (Employment and Labour Relations Appeal E013 of 2024) [2025] KEELRC 795 (KLR)

Employment and Labour Relations Court
12 March 2025
3,491 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld a school secretary's dismissal because she never responded to a show-cause letter, though she must still receive her certificate of service.

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 Hon Irura (SPM) delivered on 30th May 2024, which dismissed the appellant's claim for unlawful and unfair termination. The appellant was employed by the respondent school as Secretary/Typist from 15th January 2001 until her services were terminated by letter dated 31st October 2019, citing poor performance. She claimed a declaration of unfair termination, compensation, notice pay, allowances, gratuity, damages and a certificate of service. The appeal raised grounds that the trial magistrate erred in finding the termination fair despite the absence of a termination notice and of evidence proving the allegations against her. On appeal, the court applied Selle v Associated Motor Boat Company Ltd to re-evaluate the evidence. It found, first, that the allegations of dismal performance, lateness and insubordination constituted a valid reason warranting summary dismissal under section 44 of the Employment Act; secondly, that procedure was fair because the appellant was served with a show cause letter dated 24th October 2019 and her failure to respond meant she squandered her opportunity to be heard. Consequently, all reliefs failed except a certificate of service under section 51, which the court held was the only issue on which the trial court erred. The appeal was dismissed with costs, save for the order that a certificate of service be issued forthwith. Judgment was delivered virtually via Teams with the parties' consent, waiving Rule 28(3) of the ELRC Procedure Rules.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the dismissal of the appellant was unfair and unlawful.
  2. 2.Whether the reliefs sought in the lower court were merited.
  3. 3.What appropriate orders should this court make?

Key legal issues

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01

Validity of the reason for termination under sections 43 and 45 of the Employment Act

Holding

The termination was substantively fair; the allegations of dismal performance, lateness and insubordination constituted a valid reason amounting to a fundamental breach justifying summary dismissal under section 44.

Reasoning

The termination letter cited poor performance of the Receptionist/Typist office. Although the minutes did not show a formal performance evaluation, letters dated 24th October 2019 and BOM minutes of 17th October 2019 accused the appellant of dismal performance, lateness and failure to deliver a letter. The court was satisfied these allegations justified termination and warranted summary dismissal under section 44.

p. 7
02

Procedural fairness of the termination

Holding

The procedure was fair because the appellant was served with a show cause letter giving her an opportunity to respond, which she failed to utilise.

Reasoning

The employer was instructed by the BOM to take action against the appellant. She was afforded an opportunity to defend herself in writing by responding to the show cause letter dated 24th October 2019 but failed to respond, thereby squandering the opportunity to deny the allegations and to open an oral hearing. The court held such conduct bars the employee from raising the fairness issue in court.

p. 7
03

Reliefs payable on termination

Holding

All reliefs failed except a certificate of service under section 51 of the Employment Act, which the trial court erred in denying.

Reasoning

Having found the dismissal fair, compensation and notice pay were unavailable. Claims for underpayment, allowances and gratuity lacked particulars and evidential support; the appointment letter did not provide for gratuity. Aggravated and punitive damages were unjustified. The certificate of service is a statutory entitlement and the only relief granted.

p. 8

Legal principles established

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  • An employee who squanders the opportunity to respond to a show cause letter is barred from complaining in court that she was not heard before termination.
  • On a first appeal the court re-evaluates the evidence and draws its own conclusions, while making due allowance for not having seen or heard the witnesses.

Court orders

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  1. 1.The appeal is dismissed with costs save for the award of a certificate of service.
  2. 2.The respondent is to issue a certificate of service to the appellant forthwith.

The bench

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

majority

Wrote the judgment

On appeal from
Magistrates' Court (Employment and Labour Relations jurisdiction)
Not stated
Jurisdiction invoked
First appellate jurisdiction over the subordinate court (Employment Act claims appealed from the magistrates' court)

Relief refused

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Declaration that the termination was unfair and unlawful; compensation for unfair termination; two months' salary in lieu of notice

The court found a valid reason for termination and that fair procedure was followed

p. 7

Salary underpayment, house allowance, medical allowances, leave allowances

Lack of particulars and supporting evidence

p. 8

Service gratuity

The appointment letter did not provide for gratuity and the claim lacked particulars and evidence

p. 8

Aggravated and punitive damages

Not justified by evidence

p. 8

One-month salary in lieu of notice

Entitled per the termination letter but the appeal was otherwise dismissed; only the certificate of service was ordered

p. 7

Costs

The appeal is dismissed with costs (to the respondent), save for the award of a certificate of service which ought to be issued to the appellant forthwith.

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.

It is my view that an employee who squanders an opportunity afiorded to defend herself against allegations at work place, is barred from raising the matter in court.
p. 7Effect of failing to respond to a show cause letter
Consequently, the appeal fails to the extent highlighted above and it is dismissed with costs save for the award of a certificate of service which ought to be issued to her forthwith.
p. 8Final orders / disposition
The prayer for certificate of service is granted since it is provided for under section 51 of the Employment Act. This is the only issue where the trial court erred.
p. 8Statutory right to a certificate of service
This being a first appeal, my mandate is to re-evaluate the evidence on record and make my own independent conclusions.
p. 5Duty of a first appellate court

Issues in the judgment

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minor

Year discrepancy in the dates of the show cause and termination letters - the record shows 2019 but the respondent's submissions state 2024

minor

Employment duration inconsistency - the appellant was employed from 2001 and served 18 years, yet prayed for compensation equivalent to twelve years' salary

minor

The termination letter references a BOM meeting held on 1st November 2018, which predates the 17th October 2019 meeting it purports to follow

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, "Kiarie v Board of Management Nguku Secondary School (Employment and Labour Relations Appeal E013 of 2024) [2025] KEELRC 795 (KLR)", Case Analysis (2025). Not stated in judgment (Memorandum of Appeal dated 20th June 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/795/eng@2025-03-12

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