https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2199

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR** **RELATIONS COURT AT NAKURU** **CAUSE NUMBER E060 OF 2025** **BETWEEN** KENYA UNION OF DEOMESTIC, HOTELS, EDUCATIONAL INSTITUTIONS AND HOSPITALS WORKERS [KUDHEIHA] ........................CLAIMANT **VERSUS** B.O.M NYAKIAMBI GIRLS SECONDARY SCHOOL............................... RESPONDENT **JUDGMENT** 1. This Claim is presented by the Claimant Union, on behalf of its member Pelagia Wanjiku Ngari [the Grievant]. 1. It was filed on 30th September 2025. 2. The Claim is undefended. 3. The Claimant avers that the Grievant was employed by the Respondent as its school matron, on 31st March 2015. 4. It was alleged that there was theft in the school dormitories between 3rd August 2022 and 18th August 2022. The Grievant was named as a suspect. 5. She was arrested and arraigned in Court at Nakuru, for the offence of stealing. 6. The School suspended her on 8th October 2022. She was issued a letter to show cause. She replied on 11th October 2022. 7. She appeared for disciplinary hearing on 10th November 2022 before the Board of Management. She was denied her right of defence. 8. On 28th November 2022, she was informed that she had been summarily dismissed. She was advised that she would be paid notice and service, which was not paid. 9. She appealed against the decision. There was no response. The dispute was escalated to the Labour Office. 10. The Parties were called for a meeting by the Conciliator. The Respondent did not submit to the conciliation process, and the dispute remained unsettled. The Conciliator issued a certificate of unresolved dispute. The dispute was therefore presented before the Court for adjudication. 11. The Grievant was not paid salary for October and November 2022. She was dismissed alongside two of her colleagues, Ruth Muthoni and Phylis Kamau. While her colleagues were paid notice and service, the Grievant was paid nothing. She was discriminated against. 12. The Claimant avers that the Grievant was punished twice- by being summarily dismissed and denied terminal benefits- for the same offence, contrary to Section 87 [3] of the Employment Act. 13. The Claimant prays on behalf of the Grievant for: - 14. Service over a period of 9 years at Kshs. 130,680. 15. Notice of 3 months at Kshs. 53,091. 16. October and November salaries at Kshs. 35, 394. 1. Equivalent of 12 months’ salary in compensation for unfair termination at Kshs. 212,364. 2. General damages for delay in payment of terminal benefits at Kshs. 200,000. 3. Certificate of Service. 4. The Respondent pays a fine of Kshs. 50,000 for committing an offence under Section 12[8] of the Labour Institutions Act. 5. Costs. 6. Any other suitable remedy. 7. The Respondent failed to respond to the Claim. The Claim was scheduled for formal proof, which proceeded on 27th January 2026. 8. The Grievant adopted her witness statement and documents on record, as her evidence. She restated that she was employed and summarily dismissed by the Respondent. 9. The School had closed. She remained behind with the Deputy Principal and the Nurse. 10. On return, the Children alleged that their boxes had been broken into, and their items stolen. 11. The Principal called the Grievant. She was in the company of Police Officers. They proceeded to the Grievant’s home. They collected her soaps, dictionary and kamusi. They later returned and collected her blankets, and school blankets which had been entrusted to her by the School. 12. She was suspended and issued a letter to show cause. She responded. She was taken through the disciplinary hearing and dismissed alongside her two colleagues, Phylis and Ruth. Her colleagues were paid terminal benefits, while she was not. 13. The issues are whether the Grievant’s contract of employment was terminated by the Respondent fairly, and whether she merits the prayers sought. **The Court Finds**: - 1. The Claim as observed above, is undefended. 2. The membership of the Grievant to Claimant Union, is evidenced in her membership card and subscription receipts, exhibited by the Claimant. 3. Capacity of the Claimant Union to represent the Grievant is not doubted. 4. The Claimant has established that the Grievant was employed by the Respondent as school matron, as captured in a letter dated 25th September 2014. 5. It is correct that the Grievant was suspected of stealing school children’s personal items, during school break. 6. On resumption, the learners found their boxes vandalized, and items missing. 7. The Grievant alongside two colleagues were the suspects. She was arrested and arraigned in Court for the offence of stealing. 8. She did not disclose to the Court, what was the outcome of the criminal case. 9. At the school level, she was suspended. She was not paid her salaries for the months of October and November 2022, while under suspension. 10. She was issued a letter to show cause, which she responded to. She was invited for disciplinary hearing. She was heard and a decision to summarily dismiss her made. 11. She was informed that she was dismissed on account of negligence of duty, theft, and being in possession of stolen goods, which amounted to gross misconduct. 12. She appealed and avers that she did not receive a proper response to her appeal. 13. She approached her Union, the Claimant herein, who reported the existence of a trade dispute to the Labour Office. 14. The Respondent did not submit to the conciliation process, and the dispute was thus filed in Court. 15. Procedure was fair, in accordance with Sections 41 and 45 of the Employment Act. 16. In the absence of evidence from the Respondent, the Court has no material establishing the that the Respondent had valid reason or reasons, to justify dismissal of the Grievant. 17. There is no evidence before the Court, to indicate that the Grievant stole her school children’s personal items during school break; that she was negligent; or was caught with stolen items. 18. These are just unsubstantiated statements contained in the letter of summary dismissal. 19. Termination was not based on valid reason or reasons, under Sections 43 and 45 of the Employment Act. 20. On remedies, the Respondent has not been prosecuted in a criminal trial for any wage offence under either the Employment Act or the Labour Institutions Act. 21. This Court is not a Criminal Court, and does not try offences under the Employment Act and the Labour Institutions Act. 22. There is no foundation to the prayer for imposition of a fine of Kshs. 50,000 upon the Respondent. 23. Section 87 [3] of the Employment Act similarly, does not concern penalties in civil proceedings. It applies to cases where Employers or Employees are tried for offences under the Employment Act, and other Acts in force. 24. There is no Employer or Employee who is under trial for an offence in this Claim. 25. The prayer for imposition of fine or imprisonment, has no foundation and is declined. 26. There is likewise no foundation, to the prayer for general damages for deliberate delay by the Respondent to pay terminal benefits to the Grievant, which the Claimant quantifies at Kshs. 200,000. 27. The Guidelines on Government-Maintained [Assisted Secondary and Special Schools] dated 27th June 1996, support the prayers for notice and service pay. 28. Clause 11 offers Employees with over 5 years’ service, termination notice of 3 months. Clause 20 offers service pay equivalent of 1-month salary for each complete year of service. 29. **The prayer for service is granted at Kshs. 130,680**. 30. **The prayer for 3 months’ notice of termination, is allowed at Kshs. 53,091**. 31. The Grievant was still an Employee of the Respondent, in October and November 2022. There was no justification in withholding her salaries. **Salaries for the 2 months are granted at Kshs. 35,394.** 32. The Grievant worked for 9 years. There is nothing on record to suggest that she occasioned, or contributed to, the circumstances leading to her dismissal. She did not inform the Court whether she secured alternative employment. The Guidelines indicate that she would retire at the age of 60 years. **She is granted compensation for unfair termination equivalent of 9 months’ salary at Kshs. 159,273.** 33. **Certificate of Service to issue.** 34. **Costs to the Claimant**. 35. **Interest granted at court rate, from the date of Judgment, till payment is made in full.** **IN SUM, IT IS ORDERED: -** 1. **It is declared that termination was unfair.** 2. **The Respondent shall pay to the Grievant through the Claimant, service at Kshs. 130,680; notice at Kshs. 53,091; arrears of salary at Kshs. 35,394; and equivalent of 9 months’ salary in compensation for unfair termination at Kshs. 159, 273 – total Kshs. 378,438.** 3. **Certificate of Service to issue.** 4. **Costs to the Claimant.** 5. **Interest granted 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 July 2026. James Rika Judge