https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2382

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **APPEALS DIVISION** **APPEAL NO. E213 OF 2025** BETWEEN **ALBANOS PETER MUTWIWA……………………………...APPELLANT** **AND** **TRINITY KINDERGARTEN** **PREPARATORY SCHOOL …………………………………RESPONDENT** **(Being an appeal against the judgment of the Honourable A. N. MAKAU (SPM) in NGONG ELRC Case No. E009 of 2024 delivered on 12/6/2025)** JUDGMENT *(Before Hon. Justice Abuodha Jorum Nelson)* 1. Through the Memorandum of Appeal dated 24th June, 2025, the Appellant appeals against the judgment and decree of the Hon. A.N Makau (SPM) delivered on 12th June 2025. 2. The Appeal was based on grounds that: - 1. ***The learned trial Senior Principal Magistrate erred in law and in fact by dismissing the Appellants’ case without evidence of any misconduct on his part.*** 2. ***The learned trial Senior Principal Magistrate erred in law and in fact by not considering the evidence of the Appellant.*** 3. ***The learned trial Senior Principal Magistrate erred in law and in fact by not appreciating that there was no evidence tendered to prove that the Appellant herein together with his colleagues had opened up a new school.*** 4. ***The learned trial Senior Principal Magistrate erred in law and in fact by not appreciating that the Respondent acted on false rumors and that the Appellant had not opened up any school.*** 5. ***The learned trial Senior Principal Magistrate erred in law and fact by turning the burden of proof on to the Appellant on allegations of opening up a school made by the Respondent which burden of proof lay squarely on the Respondent.*** 6. ***The learned trial Senior Principal Magistrate erred in law and fact by not appreciating that however much the Respondent had a whole year to file its defense, the school allegedly opened by the Appellant was not mentioned at all in any document filed in defense because the said school did not exist.*** 7. ***The learned trial Senior Principal Magistrate erred in law and fact by not finding that the contradictory reasons for dismissal amounted to an afterthought with no clear, genuine and legal basis for termination of the Appellant’s employment.*** 8. ***The learned trial Senior Principal Magistrate erred in law and fact by not appreciating that the ground adduced for summary dismissal by the Respondent can never be a ground for summary dismissal without an express written agreement prohibiting the same.*** 9. ***The learned trial Senior Principal Magistrate erred in law and fact by failing to appreciating that the Appellant as a private school teacher was only bound by terms of work engagement different to those of TSC teachers, and hence Regulations of the TSC employees do not apply to him with regards to leave.*** 10. ***The learned trial Senior Principal Magistrate erred in law and fact by not awarding the Appellant salary for the days worked in December 2023.*** 11. ***The learned trial Senior Principal Magistrate erred in law and in fact by failing to find that the Respondent as the custodian of the Employee’s records was mandated under the Act to produce evidence with regards to claims by the Appellant but did not.*** 3. The Appellant therefore prayed that the Appeal be allowed with costs and the judgment of the Hon. A.N. Makau (SPM) delivered on the 12/06/2025 at Ngong Senior Principal Magistrate’s Court in ELRC Cause No. E009 of 2024 *Albanos Peter Mutwiwa -vs- Trinity Kindergarten and Preparatory School* be and is hereby set aside and substituted with this Honourable Court’s orders allowing the Claimant/Appellant’s Claim with costs. 4. The Respondent in response to the Appeal filed its Replying Affidavit sworn by **AUGUSTINE MUKUMBU NDAISI** the authorized representative of the Respondent on 21st August, 2025. The Respondent averred as follows: \_ * 1. The appeal herein is without merit, frivolous and an abuse of the court process, as it seeks to overturn a well-reasoned judgment delivered on 12th June 2025 after a full hearing in which both parties were accorded a fair opportunity to present their respective cases. 2. In response to Ground 1 of the appeal, the trial court correctly found that the Respondent had established valid reasons for termination of the Appellant’s employment, including his involvement in opening and running a private school in direct competition with the Respondent, contrary to the express terms of his employment contract. 3. In response to Grounds 2, 3, and 4 of the appeal, the trial court duly considered the Appellant’s evidence but found it unconvincing in light of the Respondent’s documentary and oral evidence confirming breach of the employment contract. The allegation that the decision was based on “false rumours” is baseless, as the Respondent’s decision followed a thorough investigation. 4. In response to Ground 5, the burden of proof was correctly applied in accordance with Sections 43 and 47(5) of the Employment Act, which require an employer to prove the reason for termination, which the Respondent did by providing evidence. However, having proven fair termination, the court proceeded to shift the evidentiary burden to the employee to prove unfairness, which the Appellant failed to do. 5. In response to Grounds 6, the allegations set forth by the Appellant are contrary to the findings of the trial court. The defense in question was rightly filed on 9th October 2024 after the Appellant’s termination in January 2024. The issue regarding the name of the school was not raised in the trial court and as such a new issue being presented to this court. 6. In addition to the above, having lawfully and fairly terminated the Appellant’s employment, the Respondent was under no legal obligation to investigate or ascertain the Claimant’s subsequent activities. This is occasioned by the fact that the grounds for termination had ceased to pose any continuing risk or relevance to the Respondent’s operations. 7. In response to Grounds 7, the alleged “contradictory reasons” for dismissal is unfounded, as the record shows a consistent position that the Appellant engaged in activities that constituted a conflict of interest and gross misconduct under Section 44(4)(g) of the Employment Act. 8. In response to Ground 8, the Appellant’s conduct constituted gross misconduct which forms ground for summary dismissal under Section 44(4) of the Employment Act, as the law imposes an implied duty of fidelity and loyalty on employees. 9. In response to Ground 9, the Appellant’s reference to TSC regulations is irrelevant, as his employment was governed by his contract and the Employment Act, both of which he breached. The same was given consideration by the trial court. 10. In response to Grounds 10, the Appellant was placed on suspension for the month of December 2023 and therefore not entitled to salary or to the reliefs claimed. 11. The trial court’s findings were sound in fact and in law, and the appeal discloses no basis for interference by this Honourable Court. 12. It is in the interest of justice that the appeal be dismissed with costs to the Respondent. 5. The Appeal was disposed of by written submissions. **APPELLANT’S SUBMISSIONS** 1. The Appellant’s Advocates Waiswa Abed & Company Advocates filed written submissions dated 9th February, 2026 and counsel relied on the case of **Kapsiran Clan vs Kasagur Clan (2018) eKLR** which cited the cases of **Selle & Another V. Associated Motor Boat Co. (1968) E.A 123 and East Africa Court of Appeal decision in Peters vs Sunday Post Limited (1958) EA 424** on the duty of the first appellate court.Counsel argued the first and second grounds together and submitted that the Appellant informed the trial court that on or about the 13th of December, 2023 he was summoned by the director of the Respondent together with his 3 other colleagues and they were informed that they had opened up a new school and that the Respondent school was terminating their employment. The words of the director were quoted as *"you all stand sucked as of now and there is ongoing interviews now from suitable candidates to replace you immediately".* 2. It was submitted that they were never given any chance to explain themselves, the decision to terminate their employment had already been made, their fate already sealed. The Appellant also informed the trial court that the director did not give them an opportunity to explain themselves if indeed the rumour was true or false. The Appellant herein denied opening up any school together with his colleagues who also independently filed their claims against the Respondent herein in MCELRC EOO8/2024 (Appeal No. E212 of 2025) and MCELRC EO10/2024 (Appeal No. E214/2025) and the claims were heard together with this instant claim/ Appeal. 3. Counsel submitted that the Appellant herein informed the trial court that in the month of January 2024 the Respondent's director informed him that the benefit he was enjoying for school fees waiver for his daughter as a member of staff no longer accrue to him because he was not in employment with the Respondent and as such, he was required to pay school fees for his daughter known as Gloriah Mwende Mutwiwa. 4. Further to the above, the Appellant informed the trial court through his witness statement that on the 19th of January 2024 his daughter came back home with her diary with the comment that "pay school fees for Gloria". It should be noted that the Respondent did not dispute the fact that the said document emanated from the Respondent school. This clearly shows that the Respondent's director had regarded the Appellant as a non-member of staff by the month of January 2024 yet the response to the demand letter stated otherwise that he was still a teacher in the institution. That it should be noted that this communication from the Respondent's advocates was written on the 9th of February, 2024, three months after termination of the Appellant's employment. 5. Counsel submitted that the above quoted communication from the Respondent's advocates was a ploy to distract the Appellant because, by the time the Appellant filed the claim on the 14th of April 2024, five months after his unlawful termination, he had not heard from the Respondent on the alleged investigations on the rumour of opening up a new school or the alleged review of their performance. 6. It was submitted that this Response from the Respondent's advocates is clear that the Appellant was not involved in any misconduct as the response addressed alleged "review of Performance" and nothing to do with any opening up of a school by the Appellant and his colleagues. It should also be noted that the Respondent had never cited the Appellant for any poor performance issue. 7. Counsel submitted that had the trial court properly considered the evidence on record, it would have been sufficient to declare that there was no misconduct on the part of the Appellant and therefore his dismissal was unprocedural and unlawful. 8. Counsel argued the third, fourth, fifth and sixth ground together and submitted that it's a cardinal principle of law "that he who alleges must prove". This principle of law is captured under section 107 of the Evidence Act. Reliance was placed on the case of **Proline supaquick Limited -vs- Kenol Kobil plc formerly known as Kenya oil Limited [2020) eKLR** on this principle. 9. It was submitted that the Respondent director alleged that the Appellant and his colleagues had opened up a new school which they denied and that was the basis for their termination. The burden of proof was upon the Respondent to prove that indeed the Appellant and his colleagues had opened up a new school but she did not. There was absolutely no way that the Appellant could provide evidence that he had not opened up a school that he did not know about. 10. Counsel submitted that the Respondent filed its defense one year after the claim had been filed and no particular document mentioned which school the Appellant had opened. At the hearing of the claim, there was no mention of any school during the cross examination of the Appellant by counsel for the Respondent, this at least would have enabled the Appellant to respond to the allegation but it was not to be. That at the time the Appellant closed his case, he did not know which school he had allegedly opened, if there was any school, it was only known to the Respondent's director and she was not in a hurry to disclose it to the court and the Appellant to respond to it. 11. It was submitted that on cross-examination of the Respondent's director, she did not inform the court about which school the Claimant and his colleagues had allegedly opened, she did not give any name of the school, the directors of the alleged school, when it was opened and the location of the said school. The Respondent's Director just casually mentioned the name of the alleged school as "GLORY" on re-examination by counsel for the Respondent. This left the Appellant with no opportunity to verify the truthfulness in the said alleged school as the Appellant had vehemently denied to have ever opened up any school. This "GLORY" name was a ploy to mislead the court. 12. Counsel relied on section 45(2) of the Employment Act on what amounts to unfair termination. That it was clear that having failed to substantiate the allegations that the Appellant opened a competing school by giving its name, directors, its location, then the reason for termination was not valid and the termination of the Appellant's employment was unfair. Counsel relied on the reasonable test by an employer as was defined by Lord Denning in **British Leland UK ltd v Swift [1981] I.RL. R 91** if a reasonable employer would have dismissed the Appellant. 13. Counsel faulted the trial court for deciding that the threshold for reasonable test was reached as this placed the Appellant to a situation of proving an allegation he did not know anything about. 14. On the seventh ground counsel submitted that whereas the Appellant was dismissed for opening a new school the Respondent in its response to their demand letter alleged a different issue of performance as seen above. That it is common practice that summary dismissal does not include placing one on suspension as employment is terminated immediately without notice or pay in lieu of the notice, typically resulting from gross misconduct such as theft, violence, or severe breach of contract. 15. It was submitted that the contradictory reasons for termination of the Appellants employment only points to the conclusion that the Respondent did not have a valid reason to terminate the employment making the act unlawful and without the required legal procedure. 16. On the eighth ground counsel relied on section 44 of the Employment Act which gives the instances of summary dismissal. Opening up a rival business or school in this case which the Appellant had denied is not one of the grounds for summary dismissal. That the opening up of a rival school would amount to gross misconduct if there was an express written contract prohibiting the same. It's common practice for professionals including teachers and doctors to open competing institutions to that of their employer as long as it's not contractually prohibited. In this case, the Appellant's employment was terminated for allegedly opening a competing school to that of the Respondent, yet there was no express written contract prohibiting the vice, be that as it may, it should not also be forgotten that the Appellant to date denies ever opening up of any school. 17. On the ninth ground counsel submitted it was the testimony of the Respondent's director on cross examination that the Respondent had a written document with the Appellant on leave and house allowance, however, she did not produce that written document even after having prior knowledge of the claim by the Appellant. That from the testimony of the Respondent about the availability of a written contract on leave and house allowance, it was clear that the parties never intended the Teachers Service Commission's guidelines on leave and housing allowance to apply to them. That is why a written agreement was entered into by the parties which included leave and housing allowance. 18. It was submitted that to add weight to this, the Respondent through its Replying affidavit dated 21st August 2025 to the memorandum of appeal dated 24th June 2025 at paragraph 11 of the said Replying affidavit informed the court that the same was not applicable to the Appellant. Counsel relied on section 74(1)(f) of the Employment Act which mandates the employer to keep the employment records of an employee. 19. It was submitted that the Respondent having testified that there was a written agreement on leave and housing available, the trial magistrate ought not to have invoked the Teacher's Service Commission's guidelines on leave and housing allowance but should have allowed the same as prayed due to the failure of the Respondent to provide the said written contract which she was bound by law as the employer to keep record of. 20. Counsel submitted that it was the Respondent's testimony on cross examination that indeed the Respondent had not paid the Appellant for the 13 days worked of Kshs 10,183.00/= for the month of December 2023, it then followed that the Appellant was entitled to that pay even though the subsequent dismissal is found to have been fair. 21. Counsel faults the trial magistrate's decision which found that since the termination was fair, then the Appellant was not entitled to pay for the days worked before the termination. That for the reasons submitted above, the termination of the Appellant's employment was unfair and the Appellant was entitled to damages for unfair termination as prayed while relying on section 49 of the Employment Act remedies for unfair termination including the 12 months salary. 22. On the remedy of overtime allowance, counsel submitted that the Appellant informed the court that class 8 teachers were instructed by the Respondent to report to school and engage the learners by 6:30 am and leave in the evening by 6:30pm after all other teachers and learners had left and also report to school on weekends whereby the school would compensate them with overtime allowance of Kshs. 3,000/= per month. 23. That the Appellant produced his bank statement to show that only overtime for the month March, 2020, but further promises to pay did not yield anything. The Respondent director did not deny that the claimant as a class 8 teacher worked overtime. Nothing was said to respond to the Appellant's claim on this issue and hence it remains uncontroverted. The Appellant had a legitimate expectation to believe that the overtime pay would be paid as promised and he continued working overtime. That the Appellant proved this claim and prayed that this honourable court do overturn the trial court's decision and award the overtime as tabulated (3,000 x 72) =Kshs. 216,000/= and the Appellant is entitled to it as prayed. 24. On the remedy of refund for amount deducted arbitrarily counsel submitted that Appellant produced his bank statement in evidence. It can be seen that indeed from the statement that the amount paid by the Respondent was never consistent but the Respondent had nothing to say on the discrepancies on the payment hence the same is uncontroverted and the claimant is entitled to a refund of the said amount prayed of (500 x 72) = Kshs. 36,000/= 25. On the remedy of refund for NHIF and NSSF deducted but not remitted counsel submitted that it was the evidence of the Appellant that NHIF and NSSF were deducted by the Respondent but were never remitted. The Respondent in cross examination admitted to deducting the said amounts but did not tender any evidence to show that it was remitted. Having deducted and not remitted the NHIF and NSSF contributions, the said amount should be refunded to the Appellant as prayed. Reliance was placed on the case of **Alex Musembi Mulili -vs- Jacob Nzioka Kwesi & 3 Others (2016] KEELRC 1510 KLR** where the court awarded the claimant the refund for NHIF and NSSF money deducted and not remitted. That the amounts of Kshs. 14,400 and Kshs. 28,800/= being for NHIF and NSSF respectively be refunded. **RESPONDENT’S SUBMISSIONS** 1. The Respondent did not file their submissions at the time of preparing this judgment which was past the period given to file and they relied on their Replying Affidavit. **DETERMINATION** 1. The court has considered the grounds of appeal, the record of appeal and submissions filed by the counsel for the Appellant herein and observes that it is now settled law that the duty of the first appellate court is to re-evaluate the evidence in the subordinate court both on points of law and facts and come up with its own findings and conclusions as held in **Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR,** the same stated with regard to the duty of the first appellate court; *“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way”* 1. In this case, the Judgment of the trial court was that the trial court dismissed the Appellant’s claim with costs to the Respondents while finding that the Appellant failed to prove his case against the Respondent on a balance of probability. The Appellant was aggrieved by the above judgment and fronted 11 grounds of Appeal which the court will condense in to two main issues namely: - 1. Whether the trial court erred in finding that the Appellant’s did not prove his case as against the Respondent on a balance of probability. 2. Whether the trial court erred by not awarding the reliefs sought by the Appellant. **Whether the trial court erred in finding that the Appellant’s did not prove his case as against the Respondent on a balance of probability.** 1. In this case the Appellant alleged that on 13th December, 2023 he was summoned by the director of the Respondent together with his 3 other colleagues and they were terminated on allegations of having opened a new school which the Respondent came to later name as GLORY. The Appellant denied ever opening such a school and alleged that they were never heard on those allegations. The trial court relied on the reasonable test of an employer that any reasonable employer would dismiss the Appellant on such accusations of opening a competing business. 2. The courts have always held that for termination to pass fairness test there should be both substantive and procedural fairness. This court is guided by the holding in **Janet Nyandiko versus Kenya Commercial Bank Limited (2017) eKLR** among others. On the substantive test the employer must give a fair and valid reason as per section 43 of the Employment Act. Section 45 of the Employment is clear that where there are no valid and fair reasons such termination is unfair.Section 44 of the Employment Act , 2007 stipulates when summary dismissal can occur in particular under Section 44(4). 3. The Respondent claimed that the Appellant with his 3 colleagues were summarily dismissed for opening a new school which had affected their performance behind her back. The Appellant denied opening the school and stated that in any case there was no written contract warning them of opening a competing school. That there was no-compete clause in their contracts. 4. The Respondent alleged that there were investigations in the matter which established that the Appellant opened a new school by the name GLORY. The Respondent however did not furnish the same investigation report to the trial court or to the Appellant. Vide the response to demand letter dated 9th February, 2024 the Respondent alleged that the Appellants were on suspension without stating the reason they were on suspension. The Respondent also stated that they were suspended to review their performance. 5. This court notes that whereas the Appellant was terminated in December, 2023 he was not given any suspension letter as alleged by the Respondent as they were terminated orally. The reason for their termination was therefore not clear whether it was the opening of the new school which the Respondent maintained in the pleadings or their performance as seen from the response to their demand letter. To this court the Respondent failed to justify the reasons for termination of opening the new school which had to be proved on balance of probability as required by section 47(5) of the Employment Act. 6. The court is also guided by the case of **Pius Machafu Isindu v Lavington Security Guards Limited [2017] eKLR,** the Court of Appeal stated: *“There can be no doubt that the Act, which was enacted in 2007, places a heavy obligation on the employers in matters of summary dismissal (Emphasis mine) for breach of employment contract and unfair termination involving breach of statutory law. The employer must prove the reasons for terminating (section 43) – prove that the grounds are justified (section 47 (5), among other provisions. A mandatory and elaborate process is then set up under section 41 requiring notification and hearing before termination.”* 1. This court disagrees with the trial court and finds that the said reason was never proved by the Respondent. The Respondent never proved apart from stating the name of the school as GLORY where the school was situated, who were the directors and when the same was opened. In any case the Appellant never signed any non-compete clause for the opening of a competing school to be an issue to cause their termination. On the issue of performance which the Respondent abandoned it has to be shown how the Appellant was performing and if he was performing poorly be placed on Performance Improvement Plan. The same was never illustrated by the Respondent. The Respondent ought to prove the reason for termination was fair and valid. 2. On the procedural fairness as provided for under section 41 of the Employment Act this court notes that the same was never adhered to as the Respondent did not issue any show cause letter to the Appellant on the issue of opening the new school, the Appellant was never invited for any disciplinary hearing and the Appellant was terminated the same date he was summoned by the director. The trial court relied heavily on the reasonable test and found that the Appellant was guilty of gross misconduct hence not entitled to hearing which goes against the proper intent of section 41 of the Employment Act which is couched in mandatory terms. In any case the opening of a new school is not among the grounds of gross misconduct under section 44(4) of the Employment Act. 3. This court notes that disciplinary hearing is not just for formality. An employee must know the charges against him, be explained in a language he understands, attend with a colleague of his choice and be given enough time to prepare. This court finds that irrespective of the offence committed by an employee the right to be heard was paramount before termination hence the Respondent violated the clear provisions of section 41 of the Act.This court is guided by the holding in the case of **Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Limited [2014] eKLR** that: - *Section 41 of the Employment Act is couched in mandatory terms. Where an employer fails to follow these mandatory provisions, whatever outcome of the process is bound to be unfair as the affected employee has not been accorded a hearing in the presence of their union representative.* 1. In conclusion this court disagrees with the trial court decision that the Appellant’s termination was both substantively and procedurally lawful and finds the same to be illegal, unfair and unjustified. The Appellant met the required standard of proof which is on a balance of probability that he was unfairly terminated by the Respondent. **Whether the trial court erred by not awarding the reliefs sought by the Appellant** 1. This court having found that the Appellant was unfairly terminated proceeds to award him compensation for unfair termination as per provisions of section 49 of the Act while taking in to account the considerations under section 49(4). The Appellant was employed in 2018 at a net salary of Kshs 23,500/ as his last salary. He had worked for 72 months before termination on December, 2023. This court finds 4 months’ salary to be reasonable as compensation for unfair termination. The Appellant was entitled to three months’ notice pay as per the contract of employment produced since he was terminated without notice and the same was not paid in lieu of notice as per clear provisions of section 36 of the Employment Act. 2. The court also finds that the Appellant was entitled to 13 days December, 2023 the salary before he was terminated. On leave pay this court notes there were school holidays which were paid for therefore he is not entitled to leave pay due to nature of the work of teachers who enjoy paid school holidays. 3. On the claim for house allowance the employment contracts produced provided for a net salary and it did not state if the same was consolidated hence he was entitled to the same as per section 31 of the Employment Act at the rate of 15% of the basic salary. 4. On the claim for overtime the Appellant alleged that the same was paid at Kshs 3,000/= per month as they would teach early in the morning and remain back after the rest of teachers left. This was for class 8 teachers which the Respondent never denied he was one of them. The statement produced by the Appellant shows such a payment hence the Appellant was entitled to the same. 5. On the claim for the deductions made on the Appellant’s salary of Kshs 500/= since the Respondent never denied this assertion as the custodian of employment records the same is allowed as prayed. 6. On the NSSF and NHIF remittances which were deducted but not remitted by the Respondent the same was not properly proved as held by the trial court by providing the statements and in any case those deductions have their relevant bodies for collection. If the Respondent did not remit the same the Appellant can report to the necessary bodies for action on the Respondent. The same therefore fails. 7. The claim for severance pay also fails as held by the trial court since the Appellant was not declared redundant. If the Appellant meant service pay the same would not apply to him been a member of NSSF/NHIF as provided for under section 35(6) of the Employment Act. 8. **In the upshot the Appeal succeeds with costs to the Appellant as follows: -** 9. 4 months’ salary as damages for unfair termination Kshs 94,000/= 10. 3 Months’ Notice pay…………..…. Kshs 70,500/= 11. 13 days December, 2023 Salary ….. Kshs 10,183/= 12. House allowance (15% of 20,500 x 15) =Kshs 253,800/= 13. Refund of deducted amount…………… Kshs 36,000/= 14. Overtime……………………………………. Kshs 169,000/= **TOTAL 680,483/=** 1. **This Judgment applies to the rest of the appeals with the Dancun Ogango Muranda who served for 15 months being awarded two months compensation for unfair termination and Raphael Marangu Mwobobia who worked for 60 months 3 months compensation for unfair termination of service** 2. **It is so ordered**. **Dated at Nairobi this 12th day of August 2026** **Delivered virtually this 12th day of August 2026** **Abuodha Nelson Jorum** **Presiding Judge-Appeals Division**