https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1614

Njeru v Board of Management St Thomas Moore Nguviu Boys School (Cause E027 of 2025) [2026] KEELRC 1614 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1614 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nyeri Cause E027 of 2025 SC Rutto, J June 12, 2026 Between Rowland Mugo Njeru Claimant and Board of Management St Thomas Moore Nguviu Boys School Respondent Judgment 1.By a Memorandum of Claim dated 30th July 2025, the Claimant avers that he was employed by the Respondent as a Security Guard in Job Group B with effect from 1st January 2019. He contends that he discharged his duties diligently and without incident, warning, or allegation of misconduct until 9th June 2023, when he was issued with a suspension letter following allegations that he had stolen books from one of the classrooms. 2.The Claimant further states that on the same date, while at home, he was summoned back to the school, shown CCTV footage, and thereafter arrested by a police officer attached to Kibugu Police Station. According to the Claimant, the police officer indicated that his residence would be searched. A search was subsequently conducted, but no evidence was recovered. 3.The Claimant avers that he was detained at the police station overnight and was released on 10th June 2023 after the school principal withdrew the charges against him. He remained on suspension until 19th June 2023, when he was served with a letter requiring him to appear before the Board of Management and submit a written defence. 4.He states that he prepared and submitted a written defence dated 22nd June 2023, setting out what transpired, and forwarded the same to the Board of Management. 5.The Claimant further avers that he appeared before the Board of Management on 23rd June 2023 at 10:00 a.m. According to him, he waited until approximately 5:30 p.m., when the school principal advised him to return home and await communication from the Board. 6.According to the Claimant, no communication was forthcoming. He thereafter made several follow-ups with the Respondent regarding the status of his employment until August 2023, when he did not receive a salary. 7.The Claimant avers that he subsequently referred the dispute to his union for intervention. He states that the union wrote to the Respondent but received no response. The dispute was thereafter reported to the Cabinet Secretary for Labour and Social Protection, following which a conciliator was appointed. Although several conciliation meetings were convened, there was no resolution as the Respondent failed to attend the conciliation, necessitating the referral of the dispute to this Court. 8.On the basis of the foregoing, the Claimant seeks one (1) month's salary in lieu of notice, the maximum compensation for unfair termination, service gratuity for six (6) years of service, and payment of withheld salary from August 2023 to date. 9.In its Response to the Memorandum of Claim, the Respondent denies that the Claimant was unfairly terminated and contends that he is not entitled to any of the reliefs sought. The Respondent has consequently urged the Court to dismiss the claim with costs. 10.The matter proceeded for hearing on 20th April 2026, during which both parties adduced oral evidence in support of their respective positions. Claimant’s Case 11.The Claimant testified in support of his case and at the outset, he adopted his witness statement as his evidence in chief. He further produced the list and bundle of documents filed on his behalf as exhibits before the Court. 12.In his testimony, the Claimant maintained that he was never issued with a letter terminating his employment. He further stated that upon appearing before the Board of Management on 23rd June 2023, he was kept waiting at the reception until approximately 5:30 p.m., when the school principal advised him to leave and await the Board’s decision. Respondent’s Case 13.The Respondent’s case was presented through Samuel K. Njuki (RW1), who testified as its sole witness. RW1 identified himself as the school principal and Secretary to the Respondent’s Board of Management. Equally, he adopted his witness statement as his evidence in chief and produced the Respondent’s list and bundle of documents as exhibits before the Court. 14.RW1 testified that he joined the school on 20th August 2024, after the Claimant had already ceased working for the Respondent. 15.He stated that the Claimant was suspended on 9th June 2023 following allegations of theft of books from the school. According to RW1, the matter was reported to the police, who arrested the Claimant on the basis of CCTV footage allegedly placing him at the scene. Although the school subsequently opted not to pursue criminal charges and the matter was withdrawn, it nevertheless instituted disciplinary proceedings against the Claimant. 16.RW1 further testified that the Claimant was invited to appear before the Board of Management on 23rd June 2023 and attended the meeting with a written response dated 22nd June 2023, through which he defended himself against the allegations levelled against him. 17.He averred that the Board considered the Claimant’s representations and thereafter recalled him to communicate its decision. 18.According to RW1, the Board found that the Claimant had engaged in gross misconduct by entering a classroom under the pretext of searching for civilian clothes, in circumstances where books later went missing. He maintained that searching for such items did not fall within the Claimant’s duties and that the exercise was undertaken in the absence of both teachers and students. 19.RW1 testified that, in light of the foregoing conduct and the resultant loss of the students’ books, the Respondent resolved to summarily dismiss the Claimant from employment. He further stated that this decision was communicated to the Claimant during the meeting. Submissions 20.The Claimant submitted that the reasons for his termination from employment were an afterthought as they were not properly investigated, substantiated, or proved as required by law. 21.It was further submitted that the reason for the separation, which was never communicated to the Claimant, was neither valid nor capable of proof, thus rendering the termination substantively unfair. 22.With respect to procedural fairness, it was submitted that the invitation letter did not inform the Claimant of his right to be accompanied by a fellow employee or a representative as required by law. That further, the Claimant was not furnished with minutes of the meeting, the investigation report, CCTV footage or any documents supporting the allegation against him. To this end, the Claimant submitted that the Respondent failed to follow due process, rendering his termination procedurally unfair. 23.On the Respondent’s part, it was submitted that even though the textbooks were not found in the Claimant’s house, the Respondent cannot be faulted for forming a reasonable belief that he was involved in or committed the act of stealing textbooks in one of the classrooms. 24.Referencing the cases of Galgalo Jarso Jillo v Agricultural Finance Corporation (2021) KEEKLR 323(KLR) and Thomas Sila Nzivo v Bamburi Cement Limited (2014) KEERLC 118 (KLR), the Respondent invited the Court to find on a balance of probabilities that it had discharged its legal burden of proof under Section 47(5) of the Employment Act that it had a substantive justification for terminating the Claimant’s employment. 25.The Respondent further submitted that the procedure it took to summarily dismiss the Claimant was fair and in compliance with the elements of a fair procedure set out under Section 41 of the Employment Act. Analysis and Determination 26.Having considered the pleadings by both parties, the evidentiary material on record, as well as the rival submissions, the Court has isolated the following issues for determination:i.Whether the Respondent has demonstrated that there existed a valid and fair reason for terminating the Claimant’s employment;ii.Whether the Claimant was accorded procedural fairness prior to termination; andiii.Whether the Claimant is entitled to the remedies sought. Valid and fair reason for termination? 27.Section 43(1) of the Employment Act (Act) places the burden on an employer to prove the reason or reasons for terminating an employee’s employment. In default of such proof, the termination is deemed unfair within the meaning of Section 45 of the Act. 28.In addition, Section 45(2)(a) and (b) of the Act provides that a termination of employment is unfair where the employer fails to demonstrate that the reason for the termination was both valid and fair, and that it related to the employee’s conduct, capacity, compatibility, or arose from the employer’s operational requirements. 29.In view of the foregoing provisions, the Respondent bore the obligation of establishing that it had a valid and fair reason for terminating the Claimant’s employment and that such reason was attributable to the Claimant’s conduct. 30.The Court must therefore interrogate the reasons advanced by the Respondent in justification of the termination in order to determine whether they satisfy the threshold of validity and fairness contemplated under Section 45(2)(a) and (b) of the Act. 31.As it stands, there is no termination letter on record setting out the reason for the cessation of the Claimant’s employment. Nevertheless, the evidence adduced by both parties demonstrates that the Claimant’s separation from employment arose from allegations that he had stolen school textbooks from one of the classrooms. Indeed, the suspension letter dated 9th June 2023 stated that an analysis of CCTV footage had allegedly captured the Claimant stealing textbooks from students’ desks in Form 1 North between 12:40 a.m. and 1:30 a.m. on 8th June 2023. 32.The Respondent’s case was that the CCTV footage placed the Claimant at the scene of the alleged theft. 33.On his part, the Claimant, in his letter dated 4th July 2023, admitted that he had entered the classroom while on patrol to conduct what he described as a routine inspection for civilian clothing kept by students. He further acknowledged that he appeared in the CCTV footage and apologised for undertaking the inspection unaccompanied. 34.It is worth noting that the Respondent did not indicate, let alone suggest, that the CCTV footage captured the Claimant removing or stealing any textbooks from the classroom. Equally, it is undisputed that a search conducted at the Claimant’s residence yielded none of the textbooks alleged to have been stolen. 35.If, as alleged, the Claimant stole the textbooks and was captured by the CCTV system in the classroom on the material night, it is difficult to understand why the footage did not reveal him carrying away or otherwise handling the missing text books. 36.From the evidence on record, it would appear that the sole basis upon which the Claimant was linked to the loss of the textbooks was his presence in the classroom as captured by the CCTV footage. 37.The Court is alive to the principle that, in employment disputes, an employer is not required to prove misconduct beyond reasonable doubt. Rather, it is sufficient for the employer to establish the reasons it genuinely believed to exist at the time it made the decision to terminate the employee’s employment. 38.Even applying that standard, the Court is not persuaded that the Claimant’s mere presence in the classroom where the textbooks were allegedly lost constituted a reasonable basis upon which to conclude that he was responsible for their theft. 39.Consequently, and applying the requisite standard of proof on a balance of probabilities, the Court finds that the Respondent has failed to establish that the allegation of theft constituted a valid and fair reason for terminating the Claimant’s employment. Procedural fairness? 40.The requirement of procedural fairness in termination of employment is anchored in Section 45(2)(c) of the Act, while Section 41 prescribes the specific procedural safeguards that an employer must observe before terminating an employee’s employment on grounds of misconduct, poor performance, or physical incapacity. Specifically, the employee must be notified of the allegations against them and given an opportunity to make representations in the presence of a fellow employee or a shop-floor union representative of their choice. 41.In the case herein, it is common ground that the Claimant was suspended from duty by a letter dated 9th June 2023 and was subsequently invited to appear before the Respondent’s Board of Management on 23rd June 2023. Through the invitation letter dated 19th June 2023, the Claimant was also required to prepare and submit a written defence to the school principal by 23rd June 2023. 42.The Claimant’s case is that he reported to the school at 10:00 a.m. on 23rd June 2023 in compliance with the said invitation but remained at the reception area until approximately 5:30 p.m., when the school principal instructed him to return home and await the Board’s decision. 43.In essence, the Claimant maintains that he was never accorded an opportunity to appear before the Board and present his defence orally in respect of the allegations levelled against him. 44.Although the Respondent contended otherwise, it did not produce the minutes of the alleged disciplinary hearing to demonstrate that the Claimant indeed appeared before the Board and was afforded an opportunity to be heard. 45.Further, the letter dated 19th June 2023 summoning the Claimant to the disciplinary hearing did not inform him of his right, under Section 41 of the Act, to be accompanied by a fellow employee of his choice or a union representative during the proceedings. 46.The Claimant further testified that he was never informed of the outcome of the disciplinary process or the reasons for the termination of his employment and only came to know the status of his employment in August 2023 when the Respondent ceased remitting his salary. 47.While the Respondent maintained that the Board’s decision to terminate the Claimant’s employment was communicated to him during the meeting, no documentary evidence was tendered to substantiate that assertion. In particular, the Respondent failed to produce the minutes of the alleged disciplinary proceedings, making it impossible for the Court to verify that assertion. 48.What’s more, the Respondent did not place before the Court any letter communicating the termination of the Claimant’s employment, thereby lending credence to the Claimant’s assertion that he was never notified of the reasons for his dismissal. 49.In the circumstances, the Court finds no basis for doubting the Claimant’s evidence that he remained unaware of both the reason for the termination and the status of his employment until August 2023, when his salary ceased to be paid. 50.Taking all the foregoing matters into account, the Court finds that the Respondent failed to discharge its evidential burden under Section 45(2)(c) of the Act to demonstrate that the termination process complied with the procedural safeguards prescribed under Section 41 of the Act. 51.Consequently, the Court finds that the termination of the Claimant’s employment was procedurally unfair. Reliefs? 52.Having found that the Respondent failed to establish a valid and fair reason for terminating the Claimant’s employment and further failed to demonstrate that the termination was procedurally fair, the Court awards the Claimant one (1) month’s salary in lieu of notice and compensation equivalent to six (6) months’ gross salary. In arriving at this award, the Court has considered the length of the employment relationship as well as the circumstances surrounding the termination. 53.With regard to the claim for service pay, the Court notes from the Claimant’s pay slip, which was produced in Court, that he was a contributor to the National Social Security Fund (NSSF) and therefore falls within the statutory exclusion provided under Section 35(6) of the Act. Orders 54.In the final analysis, judgment is hereby entered in favour of the Claimant against the Respondent, and he is awarded:a.One (1) month’s salary in lieu of notice in the sum of Kshs 16,947.00;b.Compensation for unfair termination equivalent to six (6) months’ gross salary in the sum of Kshs 101,682.00;c.The total award of Kshs 118,629.00;d.Interest on the total sum in (c) at court rates from the date of judgment until payment in full; ande.Costs of the suit. DATED, SIGNED AND DELIVERED AT NYERI THIS 12TH DAY OF JUNE, 2026.………………………………STELLA RUTTOJUDGEIn the presence of:For the Claimant Ms. MwendwaFor the Respondent Mr. GisembaCourt Assistant NdatiORDERIn view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court had been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.STELLA RUTTOJUDGE