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JudgmentZENAH WESONGA MAKOKHA VS THE SEC B.O.G AND THE CHAIRMAN BOARD OF GOVERNOR ST.MARYS MUMIAS GIRLS HIGH SCHOOL18 min read

ZENAH WESONGA MAKOKHA VS THE SEC B.O.G AND THE CHAIRMAN BOARD OF GOVERNOR ST.MARYS MUMIAS GIRLS HIGH SCHOOL

Employment and Labour Relations Court at Kakamega ELRC · · Jemimah Wanza Keli

Summary

The court determined that the termination of the claimant's employment by the respondents was lawful and fair under section 45 of the Employment Act, as the respondents proved valid reasons for termination related to the claimant's conduct, provided a fair hearing process, and adhered to procedural requirements. The claimant's allegations of unlawful termination, discrimination, and failure to conduct proper investigations were not substantiated by evidence, and the court found the dismissal decision met the reasonable test for fairness as per Lord Denning's interpretation in British Reyland UK Limited v Swift (1981). The court dismissed the claimant's reliefs for defamation, loss of employment, and discrimination, and ordered the respondents to bear costs.

JUDGMENT

  1. The Claimant upon termination of her employment by the Respondents filed a Statement of Claim dated 4th October 2016 at Kisumu Employment & Labour Relations Court on 5th October 2016 as Claim No. 298 of 2018, which was transferred to this court by Order of Justice Radido dated 4th October 2021. An Amended Statement of Claim dated 5th May 2022 was filed in this court on 18th May 2022 and sought the following reliefs against the respondents:-
  2. General damages for defamation and loss of employment and

discrimination

  1. Special damages as paragraph per paragraph 10 above
  2. Damages for Defamation
  3. In the alternative , and without prejudice to the foregoing , a

declaration that the Claimant’s employment was wrongly terminated and;

  1. General damages for unlawful termination
  2. Salary in lieu of notice
  3. Costs of the suit and interest thereon at court rates
  4. Any other or further relief that this court sees fit in the interests

of justice.

  1. In addition, on even date she filed her verifying affidavit to the claim sworn on the 5th May 2022.
  2. The Claimant relied on her list of witnesses, list of documents and bundle of documents filed on 5th October 2016, with all pleadings being dated 4th October 2016.
  3. Subsequently, she filed her witness statement on 27th June 2022.
  4. The claim was opposed by the Respondents who entered appearance through the law firm of J.I.Khayumbi and company advocates on the 23rd March 2022 and on even date, filed a response to the statement of claim.
  5. Subsequent to the amendment of the Statement Of Claim, the Respondents on 22nd September 2022 filed their amended response to the Statement of Claim, the Respondents’ list of witnesses, Respondents’ witness statement by Dosana Oliva Mukwilu and the Respondents’ list of documents, all pleadings being dated 6th September 2022. The Respondents also filed the bundle of documents on even date.

HEARING

  1. The Claimant’s case

The Claimant’s case was heard on the 16th November 2022 where Zenah Wesonga Makokha testified on oath(CW), adopted her written witness statement dated 24th June 2022 as her evidence in chief, and produced her documents as exhibits C-1 to 3, (with the letter dated 17th November 2015 expunged) per her list of documents. The Claimant was cross-examined by counsel for the respondents, Mr. Kyayumbi.

  1. The Respondents’ case

The Respondents’ case was heard on the 14th March 2023 where its witness Dosana Oliva Mukwilu (DW) testified on oath as the Respondent’s witness of fact and adopted his written witness statement dated 6th September 2022 as defence evidence in chief, and produced defence documents as exhibits R-1-4 as per list of documents . DW was cross-examined by counsel for the Claimant, Toloi h/b Namatsi.

  1. Claimant’s case in summary

The Claimant was a fromer employee of the Respondents(a school) designated as a teacher of Kiswahili and History from 12th September 2014 to 12th January 2015, when allegedly the Respondents for wild, unfounded and unsubstantiated allegations unlawfully terminated her contract, without affording her a fair hearing. She was accused of being in a romantic relationship against employment contract and while her colleagues who had the same allegations levelled against them were afforded a hearing and never terminated, the Claimant alleges she was discriminately terminated from her employment which is illegal, unlawful, unprocedural and untenable in law, because it was without proper reasons and hence discriminatory.

The Respondents’ case

  1. The Respondents’ case was that the Claimant who was employed on temporary terms on 15th September 2014 was in a romantic relationship with a member of staff, contrary to her employment contract and code of relation for all teachers, as she discharged her duties. There were allegedly several complaints against the Claimant’s alleged immoral behaviour which was against her terms of employment. The Claimant had allegedly been warned and when she was summoned before the Board of Management, she presented herself before it, and was accorded an opportunity to submit her submissions on the allegations levelled against her, which she failed to submit. That since the code of regulations for teachers is clear on how a teacher should behave; the board dissatisfied with her response to the allegations against her, summarily dismissed her.

Written submissions

  1. The court gave directions for filing of written submissions after the hearing. The parties complied. The Claimant’s written submissions were drawn by Namatsi & Co. Advocates and dated 24th April 2023. The Respondent’s written submissions were drawn by J.I. Kyayumbi & Company Advocates and dated 3rd May 2023.

DETERMINATION

Issues for determination.

  1. The Claimant in their written submissions identified the following issues for determination: -
    1. Whether the termination of the employment of the

claimant was wrongful, unfair and unlawful in the circumstances.

    1. Whether the claimant is entitled to reliefs sought.
    2. Who bears costs
  1. The Respondents in their written submissions identified the

following issues for determination:-

  1. Whether the termination of the Claimant’s employment was lawful/justifiable.
  2. Whether the claimant is entitled to the reliefs sought.
  3. Who bears the costs of this suit?
  4. The Court having considered the issues addressed by the

parties in their submissions and pleadings was of the considered opinion that the question of whether the claimant was a fromer employee of the respondent was not in dispute and thus the issues to be addressed in the determination of the dispute were as follows:-

    1. Whether the termination of employment of the claimant by the respondents was lawful and fair/
    2. Whether the claimant was entitled to reliefs sought
    3. Who bears the costs of this suit.

Issue a. Whether the termination of employment of the claimant by the respondents was lawful and fair.

  1. The court in determination of the issue was guided by the provisions of section 45 of the Employment Act which states:- ‘Unfair termination 45(1) No employer shall terminate the employment of an employee unfairly. (2) A termination of employment by an employer is unfair if the employer fails to prove— (a) that the reason for the termination is valid; (b) that the reason for the termination is a fair reason— (i) related to the employee’s conduct, capacity or compatibility; or (ii) based on the operational requirements of the employer; and (c) that the employment was terminated in accordance with fair procedure.’’

Substantive fairness- validity of the reason

Claimant’s case

  1. On the validity of the reasons for the termination of the employment, the claimant submits that the termination was unfair as allegations levelled against her were rumours and hearsay and she was terminated before any witnesses could record their statements against her. The procedure followed was that of terminate first then look for witnesses afterwards.
  2. The claimant submits that the bursar with whom she was alleged to be romantically involved with received only allegedly received a warning, and it was concluded that his morality as compared with that of the Claimant was in check.
  3. The Claimant submits that DW 1 during hearing alleged of several complaints against the claimant’s immoral conduct but never produced any evidence of the same nor produced the Code of regulations that the Claimant ought to have followed in her conduct.
  4. 19.The claimant submits that she was terminated unlawfully as her letter of offer of employment clearly state that:-‘…..either party should give one month’s notice in the event of termination of services” and the claimant was never give such notice.
  5. The claimant submits that DW gave evidence that the claimant was cautioned during a meeting on 20th November 2015 which she submits is not notice and subsequently ten days later on 30th November 2015, her employment terminated which amounts to breach of contract. The claimant relies on the decision of Anthony Mkala Chitavi -vs- Malindi Water & Sewerage Co.ltd , Industrial court cause no.66 of 2012.
  6. The claimant submits that she never received any show cause letter from the Board of Management nor any summons to appear on 17th November 2015 and her name never appeared on the list of seven persons who were involved in intimate relations, as contained in the Board of Management minutes of 20th November 2015. She submits that the minutes of 30th November 2015 having not being signed were fabricated.
  7. The claimant submits that her termination was unfair for unlawfully terminating her services, failing to conduct proper investigations and relying on hearsay, failing to avail to the claimant a fair hearing process, discriminating her and failing to adhere to the laws and rules governing disciplinary process.

Respondent’s case

  1. DW confirmed that the reasons for the termination of the employment of the claimant was due to her misconduct and produced the minutes of the disciplinary proceedings of 20th November 2015 (R-Exhibit 3).
  2. The respondents submit that the Claimant was afforded a chance to be heard and challenge all evidence against her and this confirms she was summoned, appeared before the board on 20th November 2015, a position she denies. The Respondent submits that the Claimant was dismissed summarily having failed to satisfy the board about her response to the allegations leveled against her.
  3. The respondents submit that the role of the court is to establish whether the decision to dismiss the employee falls within the test of fairness and fair procedure and relied on the decision in Kenya Power & Light Company Limited V Aggrey Wasike (2017)Eklr where it was held that: “much as courts are right to be solicitous of the interest of the employee, they must remain fora where all, irrespective of status, can be assured of justice. Employers are Kenyans too, and have rights which courts are duty bound to respect and uphold. As is often stated, justice is a two -way highway.”

Decision on substantive fairness

  1. The burden of proof of the validity of reasons for termination lies with the employer under section 43 of the Employment Act which reads:- ‘43. Proof of reason for termination (1) In any claim arising out of termination of a contract, the employer shall be required to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of section 45. (2) The reason or reasons for termination of a contract are the matters that the employer at the time of termination of the contract genuinely believed to exist, and which caused the employer to terminate the services of the employee.’’
  2. In the instant case the dismissal of the Claimant was pegged on the minutes of the executive Committee meeting of the Board of Management held on 30th November 2015 (R exhibit 4) which disclosed the reason for the termination of the Claimant as follows:-‘The principal proposed that Ms. Zena should be dispensed of because of her morality..’’.
  3. What the court needs to determine is whether the dismissal

decision met the reasonable test where Lord Denning in British Reyland UK Limited v Swift(1981)I.R.L.R 91 held that:-

‘The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view: another quite reasonably take a different view…’’

  1. DW told the court during cross-examination that no witnesses had recorded any statements corroborating the Respondent’s allegations that the Claimant was in a relationship with the bursar. This is evident as seen on page 12 of the Minutes of Executive Board of Management of 30th November 2015, a recommendation was made that:

“The chairman PTA was asked to go back to the student who divulged the infromation to put it in written. The Principal was also asked to get some witnesses to write their confessions”

  1. The Respondents did not have any evidence to dismiss the Claimant on hand and during the proceedings of 20th November 2015, the Claimant confirmed her relationship with the Bursar as purely professional. The Respondents did not have any other evidence to rebut the Claimant’s assertions.
  2. 31.For that, I am of the convinced that the reason for the summary dismissal of the claimant did not exist at time of disciplinary hence not valid and justified.

Procedural fairness

  1. Procedural fairness is mandatory even in the event where the employer contemplates summary dismissal for gross misconduct under section 44 of the Employment Act. The procedural fairness for gross misconduct is as defined under section 41(2) of the Employment Act to wit:- ‘41(2) Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor perfromance, and the person, if any, chosen by the employee within subsection (1), make.’’
  2. It was not disputed there were disciplinary proceedings before the termination of employment of the claimant on 20th November 2015. The respondent produced the summons to appear before the BOM dated 17/11/2015, which the Claimant has denied was addressed to her as the same was addressed to one Miss Sebby Sefu, this I agree to, but however , although the respondent did not also produce any summons addressed to the Claimant, she attended the said proceedings and aired her position.
  3. The claimant faults the termination process for reasons:- That the decision was made only ten days after the proceedings she had attended, where no evidence at all was tendered and in fact, the persons she had been accused with were never dismissed as was her case. The Respondent made a decision without any evidence as the respondents recommended that the chairman of the PTA find evidence to support the disciplinary proceedings they had already undertaken with no evidence.

Response

  1. The Respondent submits that it complied with the legal process under section 41 of the Employment Act as the Claimant went for disciplinary proceedings and was asked to give her submissions and failing to do so she was dismissed lawfully.

Decision on procedural fairness

  1. The court of Appeal in Pius Machafu Isindu v Lavington Security Guards Limited [2017] eKLR observed on procedural fairness :-‘13. There can be no doubt that the Act, which was enacted in 2007, places heavy legal obligations on employers in matters of summary dismissal for breach of employment contract and unfair termination involving breach of statutory law. The employer must prove the reasons for termination/dismissal (section 43); prove the reasons are valid and fair (section 45); prove that the grounds are justified (section 47 (5), amongst other provisions. A mandatory and elaborate process is then set up under section 41 requiring notification and hearing before termination. The Act also provides for most of the procedures to be followed …’’(emphasis mine)
  2. Section 41 of the employment Act provides for the procedure for fair termination as follows:- ‘41. (1) Subject to section 42(1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor perfromance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.’’
  3. The Claimant alleged that the decision was made before the collection of any evidence or any investigations having been carried out, and the decision was only arrived at after ten days.

  1. There is no law that gives timelines for decision making, but the issue of availability of evidence is an issue to be considered because no evidence was produced before the Board that showed the Claimant was involved in any romantic relations with the Bursar at the school, the Respondents relied on rumours and proceeded to make a decision. The Disciplinary proceedings did not point to any evidence to confirm the respondent was immorally involved with the Bursar.
  2. The evidence by DW was a record of the minutes when the Claimant appeared before the Board of Management. The Disciplinary proceedings did not have any evidence but only alleged that the claimant was involved with the Bursar. No witnesses had recorded statements to confirm this fact.
  3. The Claimant was required to further answer to the allegations that she had already answered to before the committee. The Claimant had already submitted her submissions before the disciplinary committee and could not be said to have failed to respond, when no evidence was provided for her to rebut, only the allegations stated at the disciplinary proceedings. No solid evidence was provided that could have led to the dismissal of the Claimant. In the opinion of the Respondents, it was proper to let go of the Claimant because of her immorality.
  4. Although, there was no proof of the summons to appear before the BOM to the Claimant, the Claimant in any event appeared before the BOM, which could not have happened without a notice to appear. There was no show cause letter to prove that the Claimant had been warned against her alleged immorality and for the Respondents to dismiss the Claimant without a warning was overboard, in light of the fact that , the Claimant had no evidence levelled against her to reply to. The Code of Conduct relied on by the Respondents to dismiss the Claimant was never produced before this court to buttress the Respondent’s assertions.
  5. Justice Nzioka in Freddy Kipkorir Lang’at v Co-operative University of Kenya [2021] eKLR stated that:--

“ 9. The decision of Walter Ogal Anuro v Teachers Service Commission (supra) held in paragraph 23 thereof as follows:-‘’23. It is not in contest that the Claimant was taken through some from of a disciplinary process. However, upon analysis of both the investigation and the disciplinary processes, the Court fromed the opinion that the Respondent failed the test of procedural fairness in that it did not take its investigations full circle. In the light of the seriousness of the allegations against the Claimant and the resultant consequences, the Respondent should have done more, but it took the easy option and placed the Claimant and the impostor on the same chopping block. For this reason, I find the termination of the Claimant's employment by way of summary dismissal unfair for want of due procedure.

  1. In this case, the Respondent similarly did not go the whole way by disallowing the Claimant an opportunity to defend himself. The tenets of procedural fairness encompass advance and reasonable notice of not only the steps to be taken in the disciplinary process but also documentation to prepare a defence where such documentation is in the custody of the Respondent as in this case. Put another way, if one is accused of misleading the employer and the evidence for such is the correspondence with a third party, it is incumbent upon the employer to lay the whole case against the employee by availing the full accusation and await the response or defence of the employee. In the final analysis the termination herein is found to have been ipso facto unfair for want of procedure……”
  2. I uphold the foregoing decision in holding that there was no procedural fairness in the termination process of the claimant’s employment contract.

Issue b-Whether the claimant is entitled to reliefs sought.

  1. The Claimant seeks payment of general damages for defamation. Loss of employment and discrimination and in the alternative general damages for unlawful termination , salary in lieu of notice costs and interest , service pay , unpaid salary for December 2015, costs and interest of the suit . it was the opinion of the court the court that the claimant did not prove discrimination or the claim for defamation. Her claim that the husband left because of the allegations were just mere allegations. She secured another job and there was no evidence that the said allegations of immorality affected her opportunities in life to warrant special compensation. The court holds that the compensation under section 49 of the employment Act were sufficient remedies in the instant case as considered below. .

Three Months’ Salary in Lieu of termination Notice

  1. The Claimant claims for three months’ salary in lieu of notice of Kshs. 40,500/-.During hearing the claimant said started that she used to get a salary of Kshs. 15,000/-. When asked” Any evidence of Payment of Salary” she said “No Evidence.”  The respondent exhibit 1 was offer of employment letter dated 15th September 2024 stipulating the salary as Kshs. 15,000/-. The said letter further provided for one month’s notice. I award to the Claimant one month salary in lieu of notice at Kshs. 15,000/- .

Claim for 12 months’ salary as compensation for unlawful dismissal

  1. Compensation for unfair termination/dismissal is guided by the Statutory capping under Section 49 of the Employment Act, 2007.  Kenya Ports Authority v Festus Kipkorir Kiprotich [2014] eKLR) cites that “…23. The measure of compensation should have been guided by the statutory capping- the statutory standards in place- at the time of termination. The Respondent benefited from the principles regulating unfair termination, and should not have been granted anything outside the contemplation of the existing law of unfair termination…”.
  2. In making an award of compensation, the court has to take into account a raft of considerations such as; the conduct of the employee which to any extent caused or contributed to the termination, failure by an employee to mitigate his losses attributable to the termination, opportunities available to the employee for securing comparable or suitable employment with another employer amongst others.
  3. The Claimant in her testimony, told this court that she has since secured alterative employment , but had to move to a new county to seek the same owing to the rumours emanating from her fromer employment. Considering that no other complaints had been provided as to the work of the Claimant in her capacity as a teacher, the short period of work 15th September 2014 to 1st December 2015, the lack of valid reasons for termination and lack of procedural fairness, coupled with the fact that she has since secured comparable employment, I award the Claimant the equivalent of 6 months’ salary in compensation for unfair termination at Kshs. 15,000 x6 total award of Kshs. 90,000/-

Service pay.

  1. During the hearing and a look at R -Exhibit 3 , the claimant alluded to her NHIF status having not being reflecting to indicate that statutory deductions were being submitted on her account. Service pay is only payable if the statutory deductions are not remitted. This claim fails.

Unpaid salary for December 2015

  1. DW1 in his testimony alleged that the Claimant did not claim to the respondent on the unpaid salary. The Respondent did not on its part produce any evidence of payment. The claimant’s produced the letter of termination dated 1st December 2015(C-Exhibit 1 and further the verifying affidavit stated he employment was terminated on 1st December 2015.) The court holds that salary is due for work done and in this case was payable end month for foe days worked in the month as per section 18 of the employment act to wit:- ‘18(2) Subject to subsection (1), wages or salaries shall be deemed to be due— (a) in the case of a casual employee, at the end of the day; (b) in the case of an employee employed for a period of more than a day but not exceeding one month, at the end of that period; c) in the case of an employee employed for a period exceeding one month, at the end of each month or part thereof;’’ The payment is provided for as a remedy upon termination under section 49(1)b to wit:_ ‘(b) where dismissal terminates the contract before the completion of any service upon which the employee's wages became due, the proportion of the wage due for the period of time for which the employee has worked; and any other loss consequent upon the dismissal and arising between the date of dismissal and the date of expiry of the period of notice referred to in paragraph (a) which the employee would have been entitled to by virtue of the contract; ‘’ The claimant did not work for the respondent in the month of December 2015 having had employment terminated on the 1st December 2015 and was thus not entitled to salary. She has already been awarded notice pay .

Issue c.) Who bears the costs of this suit.

  1. The respondents will pay costs of this suit plus interest at court rates with effect from the date of this Judgment.

Conclusion and Disposition

33. In conclusion the court enters judgment for the claimant against the respondent for unlawful and unfair termination as follows:-

  1. Notice pay in liue of Kshs. 15,000/-
  2. Compensation for unfair termination granted at the rate equivalent to Claimant’s salary for 6 months, that is to say Kshs. 90,000/-

Total award Kshs. 105,000/-

  1. Interest awarded at court rate from date of judgment until payment in full.
  2. Costs of the case are awarded to the Claimant.

34. Right of appeal in 30 days.

35. It is so ordered

DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 13TH DAY OF JULY 2023

JEMIMAH KELI

JUDGE

In The Presence Of:-

Court Assistant : Lucy Macheso

For Claimant : absent

For Respondent: absent

    ZENAH WESONGA MAKOKHA VS THE SEC B.O.G AND THE CHAIRMAN BOARD OF GOVERNOR ST.MARYS MUMIAS GIRLS HIGH SCHOOL ZENAH WESONGA MAKOKHA VS THE SEC B.O.G AND THE CHAIRMAN BOARD OF GOVERNOR ST.MARYS MUMIAS GIRLS HIGH SCHOOL