Wareng High School v Sanga (Appeal E003 of 2023) (27 June 2025) (Judgment) (with dissent - MA Onyango, J) [2025] KEELRC 1968 (KLR)
The bottom line
#Kenya's Employment Court reversed a Kshs 3.58 million award against a school, ruling the cook's dismissal was fair and most claims were simply not proved.
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 trial court erred in holding that the Respondent's termination was unlawful, unfair and unprocedural
- 2.Whether the trial court erred in awarding the remedies as were awarded to the Respondent
- 3.What orders should issue
Key legal issues
#Whether there was valid reason for termination
The Appellant proved valid reason: the Respondent was caught stealing food items from the school kitchen and failed to satisfactorily explain his absence from work
The court found the Respondent gave inconsistent versions of events between 28th March and 3rd April 2017. DW1 and DW2 positively identified him while removing items from the bakery, and he dropped the items and ran away. Even if he never received the letters, he did not explain his failure to report to work from 28th March 2017, which would constitute desertion of duty, a valid ground for dismissal.
Whether fair procedure under section 41 of the Employment Act was complied with
Procedure was complied with; the trial court erred by deciding the issue solely on the absence of a certificate of posting
Three letters (show cause, interdiction, and invitation to disciplinary hearing) were sent to the address the Respondent confirmed he had given the school and which his children attended. The trial court ignored all other evidence and rested its decision solely on the missing certificate of posting. The court held the evidence was sufficient to find the Respondent was caught stealing and ignored the disciplinary process.
Whether the trial court's remedies were justified
The trial court awarded remedies as prayed without justification; only salary for March 2017 and a recalculated underpayment award were proved
The trial court gave no justification for the awards, which were granted as prayed. Since the termination was found fair, notice pay and compensation fell away. Leave, overtime and pre-2013 underpayment claims were unproved. The court recalculated underpayments against the minimum wage for a cook in Eldoret for May 2015 to March 2017 and 2013 to 2015.
Legal principles established
#- On a first appeal the court re-evaluates and re-examines the evidence to reach its own findings, bearing in mind it did not hear or see the parties testify
- Each item of a claim in an employment suit must be specifically proved; special damages must be strictly proved
- Absence of a certificate of posting alone does not prove that letters sent to an employee were never posted
Court orders
#- 1.The judgment of the trial court dated December 22, 2022 together with the decree is set aside in its entirety and substituted with an order dismissing the Respondent's Statement of Claim dated August 27, 2018
- 2.The Respondent is awarded salary for March 2017 of Kshs. 8,500.00
- 3.The Respondent is awarded underpayments of Kshs. 116,909.20
- 4.The Appellant to issue a certificate of service to the Respondent
- 5.Each party shall bear its own costs of both the appeal and of proceedings in the trial court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court, Eldoret (ELRC)
- Eldoret CMELRC No. 59 of 2018
- Jurisdiction invoked
- First appellate jurisdiction over the trial court's judgment in Eldoret CMELRC No. 59 of 2018
Relief refused
#Pay in lieu of notice
Termination was found fair, so no entitlement under section 49(1) as read with section 35 of the Employment Act
Leave dues
Not proved; Respondent did not show he worked during school holidays
Compensation for unfair termination
Termination found fair
Outstanding overtime pay and overtime dues
Not proved; inconceivable that a school cook worked overtime daily including holidays
Underpayment claim as awarded by trial court (Kshs. 1,545,887.50)
Reduced to proved amounts based on minimum wage for the period 2013 to 2017
Costs
Each party shall bear its costs of both the appeal and of proceedings 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 judgment of the trial court dated and delivered on December 22, 2022 together with the decree are hereby set aside in its entirety and is hereby substituted with an order dismissing the Respondent's Statement of Claim dated August 27, 2018.
Each party shall bear its costs of both the appeal and of proceedings in the trial court.
I find that the Appellant had valid reason to terminate the Respondent's employment and complied with fair procedure in the termination of the Respondent's employment.
It is trite that special damages must be strictly proved.
Issues in the judgment
#The judgment alternates inconsistently between 'Appellant' and 'Respondent' when describing the parties' pleadings and submissions, e.g. 'It was the Appellant's case that due procedure was followed in terminating the Respondent's employment' and 'The Respondent further relied on the Court of Appeal in Kenya Power & Lighting Company Limited v Aggrey Lukorito Wasike' (in the Appellant's submissions section)
The judgment inconsistently refers to the Respondent's testimony, stating both that he testified he left employment on 28th March 2017 and that he was at work on 29th March 2017
The trial court's quoted judgment refers to the Claimant as 'her' although the Claimant is male
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wareng High School v Sanga (Appeal E003 of 2023) (27 June 2025) (Judgment) (with dissent - MA Onyango, J) [2025] KEELRC 1968 (KLR)", Case Analysis (2025). Eldoret ELRC Appeal (from Eldoret CMELRC No. 59 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1968/eng@2025-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.