[2025] KEELRC 881 (KLR)

Kegocha v Bones (As an official of Good Shepherd Africa Gospel Church, Ngong Road) & another (Cause 55 of 2020) [2025] KEELRC 881 (KLR) (19 March 2025) (Judgment)

Neutral citation: [2025] KEELRC 881 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause 55 of 2020

B Ongaya, J

March 19, 2025

Between

Fridah Kagendo Kegocha

Claimant

and

Reverend Anthony K Bones (As an official of Good Shepherd Africa Gospel Church, Ngong Road)

1st Respondent

Reverend Dr Robert Langat (As an official of Africa Gospel Church, Kenya)

2nd Respondent

Judgment

1. The claimant filed the Amended Statement of Claim on 29. 01. 2024 through Samuel Mburia & Company Advocates. The claimant prayed for judgment against the respondent for:a.A permanent injunction to be issued to the respondents barring them from maligning the claimant’s name.b.A declaration that the claimant’s termination was unlawful and/or unfair.c.12 months compensation for unlawful termination (Kshs 89,000 × 12 months = 1,068,000)d.Payment of her pension contributions of 4 and ½ years in the sum of Kshs.51,821. 44e.Payment for working during public holidays for 4 and ½ years (Kshs.2,967×51 days = 151,317)f.Payment of pay as you earn (PAYE) deductions which amounts to a sum of Kshs.256,635. 88 and interest accrued at the time of judgment.g.Issuance of her certificate of service;h.Costs of the suiti.Interest in b) c), f) and h) at court ratesj.Any other relief the court deems fit to grant.

2. The 2nd respondent filed his Memorandum of Response dated 24. 07. 2024 through Ng’etich, Chiira & Associates Advocates. The respondent prayed that the suit be dismissed with costs.

3. The 1st respondent filed his amended Statement of Response dated 06. 06. 2024 through Kimakia Magara & Partners LLP Advocates. The respondent prayed that the claimant’s claim be dismissed with costs.

4. The claimant’s case was that she was an employee of Good Shepherd Africa Gospel Church, employed by the 1st respondent and subject to the approval of the Local Church Council under the leadership of the 2nd respondent.

5. The claimant states that she joined the organization on 01. 07. 2012 and the 1st respondent issued her with a contract of employment as a children’s pastor on 28. 06. 2012, days before she reported to work.

6. On 31. 12. 2012, the claimant was issued with a letter of confirmation of employment and her salary was set at Kshs.50,000/= with annual increments.

7. The claimant maintains that since her confirmation of employment by the respondents in 2012, she has exercised and exhibited utmost professionalism, high moral and spiritual conduct in her work as a children pastor and performed excellently that her scope of work and duties kept expanding and in 2016 she was promoted to pastor in charge of ladies, couples and counselling ministries.

8. The promotion came with a salary increment from Kshs.85,569 to Kshs.89,000.

9. The claimant states that she worked excellently until sometimes in June, 2016 when the 1st respondent threatened her with unknown consequences via email.

10. A day after the email, the 1st respondent called the claimant to his office to sign a warning letter, to which she declined.

11. On 16. 06. 2016, the 1st respondent threatened to terminate her employment if she did not sign the warning letter, which she eventually signed due to the coercion. The claimant states that the warning letter did not disclose what warranted it.

12. The claimant joined the organization on probation and rose through the ranks out of absolute dedication, high standards of moral conduct and faithful service to become a pastor of four different ministries in an assembly with about seven ministries.

13. Eventually in December, 2016 the 1st respondent under the direction and control of the 2nd respondent, gave the claimant a termination letter, which was to take effect on 31. 01. 2017.

14. The claimant states that in January, 2017 the respondents unlawfully, unprocedurally and without according the claimant a hearing, that they jointly and severally chased her from the organization in the most inhuman way by ordering her publicly before other staff members to hand over keys to her office and any property she might have had.

15. For the 4 and ½ years that she worked, the claimant states that she worked during public holidays.

16. That when the respondents terminated her employment, they refused to issue her with a certificate of service as required by law.

17. The claimant states that the respondents refused to remit her statutory payments, specifically PAYE, as required by law, which have accrued to a sum of Kshs.337,774. 59 with the principal amount being Kshs.256,635. 88 and interest of Kshs.81,138. 71 as of 19. 01. 2024, notwithstanding, having deducted the same from the claimant’s salary.

18. The claimant states that the 2nd respondent unduly influenced her to pursue mediation for about three years and directed her to withdraw a demand letter from her advocate, in order to accord her a hearing.

19. It is the claimant’s case that the respondents’ action affected her and her ability to get another pastoral job under the Africa Gospel Church Kenya as a licensed pastor or in any other faith based organization.

20. On the part of the 2nd respondent, it is stated that the Trustees of the Africa Gospel Church Kenya is the umbrella church overseeing over two thousand churches across the country.

21. The Good Shepherd Gospel Church is one of the local churches run under the trusteeship of the Africa Gospel Church and under the urban area churches.

22. The Good Shepherd Africa Gospel Church is run by a local church council which is empowered with the management and running of the church and which makes all the relevant managerial decisions including the hiring of staff.

23. The 2nd respondent states that the claimant was employed by the Good Shepherd Gospel Church via the local church council under terms and conditions which were agreeable to both parties

24. It is the 2nd respondent’s case that the Trustees of the Africa Gospel Church had no influence in the hiring, disciplining and even separation of the claimant.

25. The 2nd respondent states that his only point of involvement in the claimant’s case was when she appealed to his office. However, he referred her matter back to the local church council to deal with it in line with their procedures, as his hands were tied.

26. The 2nd respondent maintains that there does not exist an employer-employee relationship between him and the claimant or between the claimant and the Trustees of the Africa Gospel Church of Kenya.

27. On the part of the 1st respondent, he states that he is not an official of Good Shepherd Africa Gospel Church but an employee in the capacity of lead pastor. That the claimant was not his employee, as they were both employees of the church.

28. The 1st respondent states that he never entered into a contract of agreement with the claimant, nor did he issue or sign the claimant’s letter of confirmation of employment on 28. 06. 2012.

29. The Africa Gospel Church management council is in charge of the appointment of the employees of the church and the 1st respondent is not a member of the said council.

30. The 1st respondent states that the claimant started conducting herself in a manner inconsistent with the moral code of conduct, the staff manual and the very calling of her office being a pastoral office.

31. That in the hearing meeting of the lay church council held on 13. 11. 2016 the misconduct of the claimant was clearly brought to her attention, the claimant was given an opportunity to be heard and the decision made on that day that culminated in her termination.

32. The 1st respondent maintains that the termination of the claimant was lawful and fair, substantively and procedurally for reasons that the claimant misconducted herself and behaved in a manner inconsistent with the moral code of conduct, the staff manual and the very calling of her office being a pastoral office. That she was given several warnings before the decision to terminate her employment was reached, she was given opportunity to be heard, and that she was given a two months’ notice as opposed to the one month provided in her contract of employment and paid an equivalent of two month pay in lieu of notice at the same time.

33. The 1st respondent states that the claimant was paid her terminal dues and that she was not entitled to any overtime payment as she never worked overtime.

34. The 1st respondent states that the claimant is already working at Nairobi Chapel.

35. The parties filed their respective submissions. The court has considered the parties’ respective cases and makes finding as follows.

36. To answer the 1st issue, by pleadings and material on record the 1st respondent and not the 2nd respondent is found to be the employer of the claimant. Section 2 of the Employment Act, 2007 defines ‘employer’ thus: “employer” means any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company. The 1st respondent has admitted by pleading and testimony that he acted as the 1st Pastor of the Local Church Council and to that extent, he was the claimant’s employer in his capacity as Manager or Agent or Foreman in the Church business. He has specifically admitted that he took actions for the employer against the claimant. The claimant testified thus. “…I state role of 1st respondent was my immediate supervisor. Am aware he was an employee acting for the Church. He was my supervisor….” The claimant confirmed in here testimony that she worked for Good Shepherds Church. For 1st respondent he testified thus “…Am employed to serve as Pastor at Good Shepherd Gospel Church. I served the claimant with termination letter. I acted on behalf of the Local Church Council. I did not dismiss her alone. It was in consultation with other leaders.” By those testimonies and the Local Church Council not having been shown to be a person in law, the Court finds that the 1st respondent as the Pastor and Manager amounted to the employer as defined in the Act.

37. The 2nd issue is whether the termination was unfair. The 1st respondent issued to the claimant the warning letter dated 16. 06. 2016 about how the claimant related with colleagues in the office and how to handle pastoral issues. The letter stated that the claimant’s actions betrayed trust and team work and was required to rectify her ways and work ethics around the office. It concluded thus, “If you disagree with my decisions, please feel free to address them with the lay leader who is copied.” The signed the warning letter. There is no evidence that thereafter she may have raised issues with the lay leader as was given chance in the said warning letter. The claimant’s employment was subsequently terminated by the letter dated 01. 12. 2016 and effective 31. 01. 2017 the letter referred to church policies attached to the claimant’s letter of employment and to successive meetings attended by the claimant that culminated in the Special Local Church Council meeting of 13. 11. 2016 where the claimant’s reason for termination was communicated to her. The letter stated that her pension and final dues would be paid. Further she was to clear and should she require a recommendation letter, the Church would be glad to assist. The 1st respondent testified and confirmed as follows:a.The termination was in consultation with the Local Church Council but no minutes or decision by the Council had been filed or exhibited.b.He issued and signed dismissal letter dated 13. 11. 2016 and reasons for termination were not disclosed in the letter. Further the reasons may have been communicated at meetings but minutes of such meetings had not been filed at all. In particular record of the meeting of 13. 11. 2016 had not been disclosed at all.c.No letter to show cause had been issued and no letter inviting the claimant to the disciplinary meeting of 13. 11. 2016 had been filed.d.The Church Moral Code of Conduct was exhibited but particulars of misconduct the claimant may have breached had not been spelt out at all.e.PAYE and pension contributions were deducted but evidence of their being remitted or paid not filed at all.

38. By the foregoing testimony the Court finds that the termination was unfair in procedure and substance. The claimant was warned and subsequently terminated upon general allegations which were empty as the particulars were not stated and established at all as per section 43 of the Employment Act. As testified for the claimant she was terminated for no reason shown to exist as at time of termination and no reason shown to have related to her conduct and 1st respondent’s operational requirements as envisaged per section 45 of the Act. The 1st respondent has confirmed no notice and hearing was convened per section 41 of the Act. Accordingly the Court returns that the procedure and reasons for termination were both unfair. The Court has considered that the claimant had served for 4 and half years. She appears to not to have contributed to her termination and by acknowledging the warning letter and moving to complain to the lay leader as opportunity was given to her but with no response, was an aggravating factor. The claimant filed an administrative appeal but the Local Church Council appears not to have considered it in her favour or at all. The Moral Code Contract stated that she could appeal to the Local Church Council whose decision would be binding and final but, the Council failed to entertain her case. In particular, the termination letter of 01. 12. 2016 did not mention that she was entitled to appeal to the Local Church Council suggesting that the right to appeal had been aborted at the instance of the 1st respondent. The claimant’s Counsel wrote on 16. 12. 2016 to the 1st respondent to protest the termination and urging for reconciliation and involvement of the Local Church Council. The Counsel again wrote on 22. 01. 2020 but the 1st respondent took no steps and then suit was filed on 31. 01. 2020, on the verge of lapsing of the three years of limitation of the cause of action per section 90 of the Act. In that consideration, she is awarded Kshs.85,560. 20 per month (per exhibited payslip of February 2016) times twelve (12) months making Kshs.1,026,722. 40 (less PAYE) for the unfair termination. The Court considers that the absence of due process, absence of a fair reason and the 1st respondent’s repeated failure to allow involvement of the Local Church Council are such serious aggravating factors under section 49 of the Act especially in the church work environment as the claimant was entitled to lament that the manner the 1st respondent adopted to dismiss her was calculated to malign her. It was unfair and she is awarded at maximum 12 months as found.

39. The claimant did specifically particularise the claims for the unremitted PAYE and pension and which, in absence of any other material, the Court returns she is entitled as claimed and per deductions on the payslips exhibited. The claimant has not particularised the days worked on public holidays and the base of the computed amounts as ought to have been specifically pleaded and then strictly proved as is trite law. The claim on pay for work on public holidays will fail. The 2nd respondent was a necessary party for effective, efficient and complete determination of the issues and will bear own costs of the suit. The 1st respondent will pay the claimant’s costs of the suit.In conclusion judgment is hereby entered for the claimant against the 1st respondent with orders as follows:1. The permanent injunction hereby issued baring the respondents by themselves or their respective agents from maligning the claimant in view of the unfair termination herein.2. The declaration hereby issued that the termination of the claimant’s contract of employment herein was unfair.3. The 1st respondent to pay the claimant a sum of Kshs.1,026,722. 40 (less PAYE) for the unfair termination and Kshs.51,821. 44 in outstanding due pension by 01. 06. 2025 failing interest at Court rates to be payable thereon until full and final payment.4. The respondent to fully indemnify the claimant, and if the claimant has already settled with Kenya Revenue Authority, the 1st respondent to pay the claimant, PAYE deductions in the sum of Kshs.256, 635. 88 plus accrued interest or penalties, as the case may be.5. The respondent to deliver the claimant’s certificate of service per section 51 of the Employment Act, 2007 and by 11. 04. 2025. 6.The 1st respondent to pay the claimant’s costs of the suit and the 2nd respondent to bear own costs of the suit.

SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS WEDNESDAY 19TH MARCH, 2025. BYRAM ONGAYAPRINCIPAL JUDGE