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ELRCPartially AllowedNot stated in judgment

Kenya Union of Domestic, Hotel, Educational Institutions and Hospitals Workers v Board of Management Kiangochi Secondary School (Cause E020 of 2024) [2025] KEELRC 949 (KLR)

Employment and Labour Relations Court
27 March 2025
3,506 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 ruled that calling a dismissal a 'suspension' doesn't fool anyone — the school had to pay its guard Kshs.120,543 for unfair termination.

What this practically means

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Executive summary

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The claimant, a registered trade union, sued on behalf of its member, a night guard employed by a public school from 2012, alleging unfair dismissal contrary to sections 35, 41 and 43 of the Employment Act and claiming underpayment, notice pay, leave, off days, pending 2020 salary, unremitted NSSF dues, service gratuity and twelve months' compensation. The respondent denied dismissal, contending the grievant absconded after his acquittal in a criminal case and that a letter issued on 23rd March 2023 was a mere recommendation letter, not a dismissal letter. The court framed two issues: whether the grievant was unfairly and unlawfully dismissed, and his entitlement to reliefs. Holding that RW1's evidence was hearsay since she joined the school after the letter was issued, the court found the grievant did not abscond and that the suspension letter of 31st May 2021 was in fact a termination in disguise. The employer having failed to prove a valid reason or fair procedure under section 45(2), the termination was unfair. The court awarded one month's notice pay (Kshs.8,130.50 including 15% housing), six months' gross salary as compensation under section 49 (Kshs.48,783.00) and gratuity for nine years under clause 20 of the 1996 Ministry of Education Circular (Kshs.63,630.00), totalling Kshs.120,543.50. Claims for underpayment, leave, off days, 2020 salary and NSSF dues failed for want of particulars or limitation under section 90. Judgment was delivered at Nyeri on 27th March 2025, with costs and interest to the claimant.

Questions the Court framed

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

  1. 1.Whether or not the grievant was unfairly and unlawfully dismissed from his employment
  2. 2.Whether or not he is entitled to the reliefs sought herein

Key legal issues

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01

Whether the grievant was unfairly and unlawfully dismissed

Holding

The grievant did not abscond; he was dismissed effective 31st May 2021, and the suspension letter was a termination in disguise

Reasoning

The respondent denied dismissal and alleged abscondment after acquittal. However, the grievant testified he reported back and was told to await the Board's decision, and was eventually issued a letter certifying his employment ended 30th May 2021. RW1, posted after the letter was issued, produced no request for the letter, so her contrary evidence was hearsay. The court found the employer failed to prove valid reason or fair procedure, rendering the termination unfair.

p. 7
02

Entitlement to notice pay, compensation and gratuity

Holding

One month's notice pay under clause 11 of the 1996 Ministry of Education guidelines (though three months were due, only one month was claimed), six months' gross salary compensation under section 49, and gratuity for 9 years under clause 20 of the 1996 Circular

Reasoning

Having found unfair termination, the court awarded damages under section 49 of the Employment Act. The grievant served over 5 years, entitling him to three months' notice under clause 11 of the guidelines, but he prayed for only one month. Six months' compensation reflected his 9 years of unblemished service, over a year without pay unaware of dismissal, and entitlement to gratuity. Clause 20 of the 1996 Circular provided gratuity at one month's basic pay per year worked for service over 5 years.

p. 7
03

Whether claims for leave, off days, 2020 salary and NSSF dues were payable

Holding

Leave and off-day claims failed for want of particulars; the 2020 salary and NSSF claims were vague and/or time barred under section 90 of the Employment Act

Reasoning

The claimant pleaded leave and off days for five years without particulars of the periods. The claim for two unspecified months' salary in 2020 was vague and beyond the three-year limitation period in section 90. Similarly, unremitted NSSF dues for 2012/2013 were time barred and declined.

p. 7

Legal principles established

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  • Where a purported suspension coincides with the employer treating employment as ended, the suspension may in substance be a termination in disguise, and the burden lies on the employer under section 45(2) of the Employment Act to prove valid reason and fair procedure
  • Evidence of what occurred before a witness's tenure, unsupported by documents, is mere hearsay and cannot rebut direct testimony
  • A certificate of service stating the last day of work is cogent evidence of the effective date of termination

Court orders

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  1. 1.Judgment entered for the claimant against the respondent for payment of notice pay Kshs.8,130.50 (Kshs.7,070 plus 15% housing)
  2. 2.Six months' gross salary as compensation for unfair termination Kshs.48,783.00
  3. 3.Service gratuity for 9 years Kshs.63,630.00
  4. 4.Total award of Kshs.120,543.50 subject to statutory deductions
  5. 5.Costs of the suit to the claimant plus interest at court rates from the date of judgment

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (sections 35, 41, 43, 45, 49, 90) and Labour Institutions Act; claim referred from failed conciliation at the Labour Office

Relief refused

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Underpayment of salary for the last five years

The applicable wage order was not the one of 2022 since employment ended 30th May 2021

p. 7

Annual leave and off days for five years

No particulars of the period were pleaded

p. 7

Pending salary for two months in 2020

Vague and time barred under section 90 of the Employment Act

p. 7

Unremitted NSSF dues 2012/2013 (Kshs.7,200)

Time barred under section 90 of the Employment Act

p. 7

Costs

The award is in addition to costs plus interest at court rates from the date of this judgment; costs of the suit to the claimant (respondent to bear costs)

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 terminated the grievant’s employment unlawfully and unfairly
p. 7Unfair termination finding
It follows that the suspension letter dated 31st May 2021 was in fact a termination letter in disguise
p. 6Suspension as disguised termination
Her evidence was just hearsay
p. 6Weight of hearsay evidence from witness without personal knowledge
Consequently, I enter judgment for him against the respondent for payment of the following: a. Notice…………Kshs.7070 + 15% as housing Kshs.8,130.50
p. 7Final orders - notice pay
The award is subject to statutory deductions but in addition to costs plus interest at court rates from the date of this judgment
p. 8Final orders - costs and interest

Issues in the judgment

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minor

The relief schedule in paragraph 1(i) states 'March 2023- May 2022' which is chronologically inconsistent and appears to be a typographical error for March 2022 - May 2021 or similar

minor

The period of the grievant's suspension/termination is variously stated as 30th May 2021 and 31st May 2021 in different parts of the judgment

minor

The judgment does not state the case number, the full name of the claimant union, or the name of the respondent school

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, "Kenya Union of Domestic, Hotel, Educational Institutions and Hospitals Workers v Board of Management Kiangochi Secondary School (Cause E020 of 2024) [2025] KEELRC 949 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/949/eng@2025-03-27

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