https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1852

Ichuga v Naomi’s Village & another (Cause E055 of 2024) [2026] KEELRC 1852 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1852 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nakuru Cause E055 of 2024 J Rika, J June 30, 2026 Between Nancy Ichuga Claimant and Naomi’s Village 1st Respondent Naomi’s Village Kenya 2nd Respondent Judgment 1.The Claimant filed her Statement of Claim, dated 2nd September 2024. 2.She avers that she was employed by the Respondents as a Teacher, in December 2017. 3.The Respondents are described as NGOs, operating a Children’s Home and School, where the Claimant taught. 4.Her last monthly salary was Kshs. 33,696. 5.She was pregnant and applied for maternity leave, to begin 10th May 2024 to 10th August 2024. 6.Around 19th March 2024, she was issued a letter to show cause by the Respondents, alleging that she had applied inappropriate disciplinary methods to her pupil, who was a child of tender years. 7.She replied denying the allegation, and pointing out that she had met the minor’s parents, the day after the alleged incident occurred, and the parents did not raise the complaint. 8.The complaint was alleged to have been reported to the Respondents, a whole month after it arose. 9.She was invited for disciplinary hearing, but denied an opportunity to interrogate the complainant’s evidence. Her own defence was not considered. 10.The Respondents relied on an identification parade, where the Claimant was alleged to have been identified by the minor from photographs. The Claimant did not attend any parade. 11.The Respondents did not make any efforts to corroborate the minor’s evidence. 12.The Claimant was summarily dismissed on 17th April 2024. She avers that termination was not fair. It was not based on a fair procedure, and valid reasons. 13.She attributes her summary dismissal to pregnancy discrimination. She anchors her position on Articles 27 and 41 of the Constitution and Section 29 of the Employment Act. 14.Her prayers are: -a.Declaration that termination was unfair and unlawful.b.Declaration that termination was in violation of her rights under Article 27 and 41 of the Constitution, and Section 29 of the Employment Act.c.Salary for April 2024 at Kshs. 33,696.d.1-month salary in lieu of notice at Kshs. 33,696.e.Annual leave at Kshs. 165,110.f.12 month’s salary in compensation for unfair termination, at Kshs. 404,352.g.General damages for breach of constitutional rights.h.Service pay at Kshs. 117,939.i.Certificate of Service.j.Costs.k.Interest.l.Any other suitable relief. 15.The Respondents filed their Statement of Response, dated 18th December 2024. They state that the 2nd Respondent is a non-existent entity, without legal capacity to sue, or to be sued. 16.The 1st Respondent does not deny that the Claimant was its Employee. She was dismissed fairly, based on valid ground. She physically abused a minor placed under her care, contrary to the 1st Respondent’s child protection policy. 17.The 1st Respondent has a zero-tolerance policy on child abuse. Employees must act with respect, always prioritizing the safety of the Children. The Claimant was involved in an act of gross misconduct. Summary dismissal was justified. She does not merit any of the reliefs sought. 18.Her record was not clean as claimed. She had previous warnings for incompetence, misconduct and poor work. 19.She was reported on 14th March 2024, to have pinched a minor on the cheek, for the reason that the minor had soiled his pants. 20.Investigations were carried out. The minor told a social worker, that he was pinched by the Claimant. He was pinched because of soiling his pants. The Claimant threatened to pinch him, if he soiled himself again. This abuse was witnessed by other pupils. 21.The 1st Respondent denies that the Claimant was picked out by the minor, at an identification parade. 22.The Claimant was issued a letter to show cause dated 19th March 2024, detailing the allegations against her. She replied, stating that the pinching may have taken place, but that the boy may not be able to say who did it. She stated that she did not interact with the minor; she was attending training; and subsequently had taken sick leave. 23.She was called to disciplinary hearing on 26th March 2024. She was heard. She conceded that the minor was under her care, at the time pinching took place. She contacted the minor’s mother, while she was under suspension. 24.It was concluded after the hearing, that there was reasonable ground, establishing that, the Claimant had violated the 1st Respondent’s child protection policy. 25.She was summarily dismissed. 26.She was paid her dues up to the date of termination. She exhausted her annual leave days. She was actively subscribed to the N.S.S.F, and service pay is not due to her. There were valid reasons to justify termination. Procedure was fair. There was no discrimination in any form against her. Her prayers are misplaced. The 1st Respondent prays the Court to dismiss the Claim with costs. 27.The Claimant gave evidence and rested her Claim, on 7th November 2025. 1st Respondent’s social worker Peris Machage, gave evidence on 7th November 2025 and 10th March 2026. Executive Director Oscar Obwang, gave evidence for the 1st Respondent, on 16th April 2026 and 30th April 2026, closing the hearing. 28.The Claimant adopted her witness statement dated 23rd August 2024 and initial bundle of documents [1-7] and supplementary bundle [8-9], in her evidence-in-chief. 29.She restated the allegation levelled against her by the 1st Respondent. She was alleged to have pinched her pupil, a minor, a boy named Quinn. The allegation was made about a month, after the incident. She was issued letter to show cause. She replied denying the allegation and requested for CCTV footage, capturing the incident. She was told by the Respondent that it was not in her place, to ask for CCTV footage. Hearing took place on 26th March 2024. The Respondent did not get back to the Claimant, until she made a follow-up. She was issued the letter of termination dated 17th April 2024. 30.Cross-examined, she told the Court that she was an Employee of the 1st Respondent. She was familiar with the child protection policy. She had received 3 letters of warning previously in 2019, 2020 and 2022. It was respectively alleged that: she bullied staff; she was negligent regarding pupils; and left kids unattended. 31.The letter to show cause did not relate to her pregnancy. She did not know who complained against her. The minor’s mother reported. Page 23 of the disciplinary hearing minutes, indicates that the Claimant stated that the minor was joyful, and the Claimant was not angry, but she could pinch him on the cheek. It is true that the minor soiled himself. 32.The 1st Respondent explained that it was not able to review CCTV footage, because it was technically limited. It could only store footage for 3 weeks. Quinn allegedly identified the Claimant as his abuser. Other pupils did not. Minutes of the disciplinary meeting state that, other pupils corroborated the minor. 33.She was accompanied by a colleague Patrick Ndirangu, at the hearing. They both gave their representations. Decision was communicated to the Claimant after 16 days. She contacted the minor’s mother, while on suspension. She was not barred from doing so. 34.She was paid salary for April 2024. She has not specified the annual leave days claimed. The Respondent paid her N.S.S.F contributions. 35.Redirected, the Claimant told the Court that she gave birth 2 months after termination. Quinn’s mother came to the School because Quinn was having stomach problems, after eating beans. She did not come to lodge a complaint against the Claimant. The Claimant stated that pinching might have taken place, but never admitted that she pinched the minor. Hearing took place before the Claimant could have CCTV footage. She was not advised that it had technical limitations. She contacted the minor’s mum because she was concerned about his wellbeing. 36.Peris Machage adopted her witness statement and documents filed by the 1st Respondent [1-11], in her evidence-in-chief. She also introduced later, with the leave of the Court, the child protection policy [exhibit 12]. She is a social worker, and was part of the team that investigated the Claimant, on the allegation of pinching her pupil. 37.The minor and other kids confirmed that the Claimant pinched the minor, because he had soiled himself. The minor’s mum was the complainant. The complaint came after 1 month. CCTV footage could not be retrieved. 38.The Claimant was familiar with the child protection policy and had signed the policy on 27th February 2023. 39.Cross-examined, Peris told the Court she was not part of the team that visited the minor’s home. Her colleagues Fridah and Flo visited. They were not witnesses for the 1st Respondent. Other kids told Flo, that the Claimant pinched the minor. The minor did not himself, tell this to Flo. The team did not question other kids. 40.Quinn’s mum had been called to the School because he had been soiling himself. There was no medical evidence to establish assault. No one saw a mark on Quinn, borne out of pinching. No chaperone or bus driver, witnessed the pinching. There was no written complaint from Quinn’s mum. 41.Dismissal letter stated that the 1st Respondent found it hard, to believe the Claimant. It was said that the minor identified the Claimant from a photo. The 1st Respondent did not enquire about the minor’s mental acuity. He was about 3 years old. 6 photos of different Teachers, were displayed. None was availed to the Court. There was no identification report made. 42.The Claimant was given 1 day to reply to the letter to show cause. It was sufficient time. The 1st Respondent relied on corroborative witness statements, which were not placed before the Court. Termination was not related to the Claimant’s pregnancy. 43.The child protection policy was drawn on 10th January 2018. The Claimant signed on 27th February 2023. The policy does not disregard the rights of Teachers. It is to be read with the law. It states at page 1, that it is intended to protect Employees from malicious allegations. The policy requires abuse is reported within 24 hours of its occurrence. It was not so reported. It was reported 1 month after occurrence. 1 month was a long delay. 24-hour period under the policy, is meant to ensure evidence is collected while fresh. Evelyn suggested that CCTV footage would have shed light on the allegation. 44.Peris clarified on redirection that Flo, is Evelyn Akinyi Ouko. Peris agreed with her findings. Quinn’s mum reported the pinching. Quinn confirmed that he was pinched by the Claimant in the classroom. He was corroborated by other kids. He need not have exhibited physical marks of abuse, or be treated at a medical facility, to prove abuse. Pinching is a physical abuse. There was no malice against the Claimant. The Respondent was not prevented from investigating, notwithstanding the long delay in reporting the complaint. 45.Oscar Obwang adopted his witness statement and documents filed by the 1st Respondent, in his evidence-in-chief. He explained that CCTV footage was stored in the system, for a limited period of 3 weeks. There was no malice against the Claimant. She had received warnings before the summary dismissal. 46.Obwang told the Court that he has worked for the 1st Respondent for about 12 years. He is a quantity surveyor, not an ICT expert. The complaint was made by the minor’s mum, 1 month after it arose. Policy requires it is made within 24 hours. The mum came to the School because she was called by the Headteacher, on account of her son having a running stomach. Early complaint under the policy, ensures evidence is collected, while fresh. 47.Page 1 of the policy, also protects Teachers against malicious complaints. The 1st Respondent was bound to carefully balance the minor’s right to protection against abuse, with the Claimant’s right not to be subjected to malicious complaint. 48.Evelyn described the minor as jovial, and able to express himself. This was not consistent with a child who was afraid. The minor did not tell anyone else that he was assaulted or pinched. There was no technical report confirming that CCTV footage was only available for 3 weeks. 49.Obwang conceded that the Claimant had asked for CCTV footage at the disciplinary hearing, and that he told her it was not in her place, to determine how investigations should be carried out. Her request was not unreasonable. 50.Obwang did not have documents on identification. He was not present when the exercise was carried out. There was no report of an identification parade. 51.Redirected, Obwang told the Court that being joyful or unafraid, did not mean the minor had not been abused. Lack of CCTV footage did not absolve the Claimant of child abuse. Pregnancy was never an issue in the process leading to the Claimant’s summary dismissal. The Respondent is duty-bound to investigate complaints, even late complaints. 52.The issues are whether: termination was based on a fair procedure; based on valid reason; and, the remedies sought are merited. The relevant law is under Sections 41, 43, 45, 47[5] and 49 of the Employment Act. The Claimant also invokes certain Articles of the Constitution, and Section 29 of the Employment Act. The Court Finds: - 53.Employment. The Claimant was employed by the 1st Respondent, an NGO, as a Teacher in December 2017. Her contract was executed between her and Naomi’s Village Home. The 1st Respondent acknowledges to have employed the Claimant, and pleads that the 2nd Respondent is a non-existent entity. 54.The Court does not think it is necessary to retain the 2nd Respondent, whose legal personality is doubted, in the proceedings. There is an Employer who acknowledges to have employed the Claimant, and whose capacity to sue and be sued, is undoubted. 55.The 2nd Respondent’s name is expunged from the record. 56.The Claimant executed a fixed-term contract, beginning 1st July 2020, expiring 30th June 2023. 57.However, it is clear from the evidence of the parties that the Claimant was an Employee of the Respondent before, and after the period indicated on the exhibited fixed-term contract. 58.Her last monthly salary was Kshs. 33,696. 59.It is common ground that she was dismissed on 17th April 2024, for child abuse. 60.The Court must from the outset, dispel her assertion that her dismissal had anything to do with her pregnancy, or that it was in any way discriminatory. The evidence on record does not disclose any instance of direct, or indirect, pregnancy discrimination. There was no issue concerning pregnancy, that was raised by any of the parties in all the processes leading to dismissal. 61.Section 29 of the Employment Act has no relevance to the dispute. 62.The grievances raised by the Claimant, fall within the narrow compass of the Employment Act. They can wholly be considered, and remedies are available, within the four corners of the Employment Act. The Claimant therefore, should not disturb the Constitution, in litigating her grievances, and in pursuing remedies. 63.It is unnecessary to invoke any Articles of the Constitution in this Claim. 64.Procedure. The Claimant was suspected of pinching one of her charges, a boy of about 3 years, named Quinn. 65.She was issued a letter to show cause, dated 19th March 2024. The allegation was detailed in the letter. The specific clause under the child protection policy, which the Claimant was alleged to have offended, was stated. She was called to respond by midday of the next day, 20th March 2024. 66.Her response is dated 18th March 2024, which would be the date before the letter to show cause issued. The date is possibly erroneous. 67.She nonetheless replied, denying that she ever pinched the minor. She explained that he had repeatedly soiled himself, and his mother had visited the School to help resolve the problem. The mother did not complain at the time she was invited by the Claimant’s colleague to the School, that the minor had been abused by the Claimant. 68.The Claimant asked to be told when and where, the incident happened. 69.Her response does not capture her sentiment expressed before the Court, that time given to respond to the letter to show cause, was inadequate. 70.She told the Court that she was subsequently invited for hearing, which she attended on 26th March 2024, in the company of a colleague, Patrick. She was heard. Nothing is recorded in the disciplinary hearing minutes, that would suggest the Claimant was in any way disadvantaged, in stating her case. 71.A decision was taken to summarily dismiss her, and communicated to her after approximately 3 weeks, on 17th April 2024. 72.The Court does not agree with the Claimant, that a period of 3 weeks taken to consider the evidence, and make an informed decision, was inordinate delay. It was not indicated in any human resource policy to be inordinate delay. It was not inordinate delay, in the eyes of any reasonable person. 73.A very early decision, could perhaps have led to accusation against the 1st Respondent, that it did not adequately evaluate the evidence, before making the decision. In many disciplinary cases, Employees complain that they were dismissed on the very date, that they were heard. 74.The Court is unable to find any procedural missteps, that would result is declaration by the Court, that termination was procedurally unfair. 75.Procedure was fair, and in conformance with the minimum statutory standards of fairness, under Sections 41 and 45 of the Employment Act. 76.Justification. Was it established that the Claimant violated the Respondent’s child protection policy by pinching the minor, Quinn? 77.On the basis of the evidence placed before the Court, the charge that the Claimant pinched the minor, was not established. 78.The complaint was made against the Claimant about a month, from the date the minor was allegedly pinched. 79.The child protection policy which the Respondent relied on, in summarily dismissing the Claimant, states that complaints on child abuse must be made within 24 hours of their occurrence. 80.The rationale is that evidence, particularly of the minor, would be collected and preserved while still fresh. 81.The Respondent argued that it was not prevented from investigating late complaints. What would be the purpose of the 24 hour period prescribed under the policy, if the Respondent could just close its eyes, and investigate any complaint received, regardless of the time taken to lodge the complaint. 82.The warnings issued to the Claimant in 2019, 2020 and 2022, were not shown to have been within their validity period at the time of termination. 83.It was not clear who made the complaint. The minor had been schooling normally from the date he was allegedly pinched, to the time the 1st Respondent carried out its investigations. 84.His mother visited the School, not to report that her son had been accosted by the Claimant, but because she had been called by the School Head, for consultation over the minor’s persistent stomach upsets. 85.There were no credible eye-witness accounts, on the minor’s pinching. Peris Machage, the social worker testified that her colleagues led by Evelyn, who visited the minor’s home, were not witnesses in this Claim, and that some other unnamed children, not Quinn himself, told Evelyn that the Claimant pinched Quinn. 86.The minor was alleged to have identified the Claimant as his abuser, through photos which were placed before him. There was no report of this exercise. There were no photos placed before the Court. The Claimant was not involved in any identification parade. She was not present when the exercise was carried out. 87.She called for CCTV footage, right from the time she replied to the letter to show cause. Parties agree that CCTVs were mounted in the classrooms, and the buses that ferried the Teachers and the Learners. Events, persons, in the classrooms and in the buses, were constantly monitored. 88.While the Respondent states that the CCTV system did not allow for storage of footage beyond 3 weeks, the Executive Director Oscar Obwang’s response to the Claimant upon her request to be availed CCTV footage, was dismissive and even abrasive: that it was not in the Claimant’s place to determine how investigations should be carried out. 89.The Respondent conceded in its evidence that CCTV footage was important in supporting, or discounting, the charge of child abuse made against the Claimant, but did not offer credible evidence, supported by a technical report from its CCTV service provider, on why footage was not retrievable. 90.Obwang conceded also that the child protection policy, requires the 1st Respondent to balance child protection rights with the rights of an accused Teacher. The policy protects Teachers from malicious complaints. 91.The Respondent did not show that it attempted to balance Quinn’s rights, with those of the Claimant. 92.The complaint was not only received late, but was not in a written form, and the complainant was not clearly specified. 93.Quinn’s mother was called to the school for consultations over her boy’s persistent stomach problem. She is not recorded to have gone to the school to report any complaint. 94.Evidence against the Claimant to justify summary dismissal was mostly hearsay, from colleagues of the Claimant, who alleged that they were told by other children that Quinn told them, that he was pinched by the Claimant. 95.The Respondent, even if it was permissible to receive a late complaint, needed to do much more than just rely on hearsay evidence from children and their minders. 96.There were other Teachers and workers, and even pupils, who had access to Quinn, and who could have pinched him about a month from the date the 1st Respondent commenced investigations. 97.There was no evidence that tied down the Claimant to the pinching, if such pinching ever occurred. 98.There was not a word from Quinn about the pinching. Social worker who interacted with him found him expressive and jovial. There was no physical mark of pinching. Evidence of child abuse, on all aspects was lacking. 99.To digress a little, it bothers the Court, that pinching of a 3-year old child by his Teacher, a child who was probably still at potty-training age, would elicit a major dispute between the Teacher and her Employer, resulting in the Teacher’s loss of employment. 100.Why would an alleged pinching of a schoolchild by its Teacher, be the subject matter of such high octane investigatory and disciplinary processes, where CCTV evidence is pivotal, and where some form of identification parade is held ? It was like a felony was being investigated. 101.How will the young ones learn, how will they become potty-proficient, if they are not pinched at school and at home? 102.In a world where some school children have become delinquents, hardcore criminals, rampaging all over our learning institutions, burning their schools, and fatally incinerating sleeping colleagues indiscriminately, it boggles the mind that a light corrective disciplinary measure, such as pinching of a child by her Teacher, at a formative age, should be deemed to amount to corporal punishment, and result is the summary dismissal of the Teacher. 103.There is need to revise our laws, to enable Parents and Teachers to retrieve the rod, so that we do not spoil our Children, in the name of protecting them. We should have back, some controlled forms of corporal punishment, in our schools. Sparing the rod, is likely to lead to juvenile delinquency and criminality. 104.The UN Committee on the Rights of the Child outlaws corporal punishment. It defines corporal punishment, perhaps unwisely in the view of the Court, as any disciplinary action involving physical force, intended to cause any degree of pain or discomfort, however light. Pinching is identified as a form of corporal punishment. 105.Pinching of Quinn, would be considered corporal punishment under Article 53 [1] [d] of the Constitution, which explicitly protects every child from all forms of violence, abuse, inhuman treatment or punishment. 106.Section 36 of the Basic Education Act 2013 strictly bans physical or psychological punishment in schools. Likewise, Section 25 [3] of the Children Act 2022, prohibits all forms of corporal punishment in schools. 107.The 1st Respondent’s child protection policy is therefore well-founded in these laws, but the 1st Respondent went completely off the road, in its application to the Claimant and Quinn. 108.The Respondent did not establish valid reason, to justify summary dismissal, in accordance with Sections 43 and 45 of the Employment Act. 109.Remedies. It is declared that termination was not based on valid reason, and was therefore unfair. 110.The Claimant confirmed on cross-examination that she was paid her April 2024 salary. The prayer for April 2024 salary is declined. 111.The grievances raised by the Claimant as observed elsewhere, can be redressed under the Employment Act. Declaratory order sought on Articles 27 and 41 of the Constitution is declined. 112.The Claimant is granted the prayer for 1-month salary in lieu of notice at Kshs. 33,696. 113.There was no evidence on unutilized annual leave days. The Claimant conceded that the days were unspecified, and the claim is declined. 114.There is no merit in the prayer for general damages for constitutional violations. Service pay is unmerited under Section 35[6] of the Employment Act, the Claimant having conceded that she was actively subscribed to N.S.S.F. 115.She was employed in December 2017. She left in April 2024. She worked for 6 years and 4 months. She was not shown to have caused, or contributed, to the circumstances leading to her dismissal. She described herself as a Teacher based at Mai Mahiu, but did not clarify if she has resumed teaching elsewhere, after she lost her job. Her contract, though described by the Respondent as fixed-term, appears to have been term-indefinite. 116.She is granted equivalent of 6 ½ months’ salary in compensation for unfair termination at Kshs. 219,024. 117.Certificate of Service to issue. 118.Costs to the Claimant. 119.Interest allowed at court rate, from the date Judgment till payment is made in full.In Sum, It Is Ordered: -a.The 2nd Respondent’s name is expunged from the record.b.It is declared that termination was not based on valid reason, and was therefore unfair.c.The Respondent shall pay to the Claimant, 1-month salary in lieu of notice at Kshs. 33,696 and compensation for unfair termination equivalent of 6 ½ months’ salary at Kshs. 219,024 – total Kshs. 252,720.d.Certificate of Service to issue.e.Costs to the Claimant.f.Interest allowed at court rate, from the date of Judgment, till payment is made in full. DATED, SIGNED AND DELIVERED ELECTRONICALLY AT NAKURU, UNDER RULE 68[5] OF THE E&LRC [PROCEDURE] RULES, 2024, THIS 30TH DAY OF JUNE 2026.JAMES RIKAJUDGE