[2025] KEELRC 1631 (KLR)

Rutto v Board of Management, Moi Kapsowar Girls Secondary School (Appeal 12 of 2020) [2025] KEELRC 1631 (KLR) (29 May 2025) (Judgment)

Neutral citation: [2025] KEELRC 1631 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Eldoret

Appeal 12 of 2020

MA Onyango, J

May 29, 2025

Between

Matthew Kosgei Rutto

Appellant

and

Board of Management, Moi Kapsowar Girls Secondary School

Respondent

(Being an appeal from the Judgment of Hon. C.R.T. Ateya delivered on 19th October 2020 in ITEN ELRC NO. 2 of 2019)

Judgment

1. The Appellant herein was the Claimant in ITEN ELRC No. 2 of 2019 wherein he had sued the Respondent vide a Memorandum of Claim dated 15th July 2019 seeking compensation for alleged unfair termination of his employment and for payment of his terminal dues.

2. After hearing the parties, the trial court delivered its judgment on 19th October 2020 and dismissed the Appellant’s suit with costs on the basis that the Claimant did not prove his case on a balance of probability.

3. The Appellant being dissatisfied with the said Judgement instituted the instant appeal vide the Memorandum of Appeal dated 23rd October 2020 on the following grounds of appeal:i.The learned magistrate erred in fact and law by failing to direct her mind properly on the principles of Employment law.ii.The learned magistrate erred in both fact and in law by ignoring the pleadings of the parties and creating new facts.iii.The learned magistrate erred in law and fact by raising the standard of proof for the claimant.iv.The learned magistrate erred in fact and in law in holding that the claimant was summarily dismissed against pleadings of the parties therein.v.The learned magistrate erred in fact and law in reciting the provision of the employment act and failing to apply them to the evidence pleadings and the facts.vi.The learned magistrate erred in fact and in law in holding that the claimant Absconded duty against the evidence offered in the pleadings and were not controverted by the respondent.vii.The learned magistrate erred in fact and law holding that the claimant did not show cause against the evidence and the pleadings that he attended disciplinary hearings as required and that the disciplinary hearing did not result in a termination but an indefinite suspension, which he sought to challengeviii.The learned magistrate misdirected her mind in fact in holding that the claimant did not bother to find out why his suspension took too long against the evidence pleadings of both parties.ix.The learned magistrate erred in fact and law in holding that the claimant was paid during his suspension in absence of and evidence of the same.x.The learned magistrate erred in fact and in law in holding that the claimant failed to prove his case in a balance of probabilities.xi.The learned magistrate erred in law and fact raising the standard of proof required from the Claimantxii.The learned magistrate erred in fact and in law holding that the claimant was not entitled to terminal benefits against the pleadings and the evidence availed.xiii.The learned magistrate erred in law stretching her discretion and ignored binding decisions relied upon by the claimant and the respondent in their pleadingsxiv.The learned magistrate failed to appreciate the binding decisions of the employment and labour relation on payment of dues and suspension.xv.The learned magistrate erred in law in ignoring the protections offered to an employee while on suspension and the entitlements under the employment act.xvi.The learned magistrate erred in law in holding that the claimant ought to have proven he did not receive payments while on suspension.xvii.The learned magistrate misdirected her mind to the law in holding that the claimant was fairly and procedurally terminated against the pleadings and the evidence advised without evaluating the procedure adopted by the respondent.xviii.The learned magistrate erred in fact in agreeing with the respondent's action to lock out the respondent from its premises and argue desertion of duty.xix.The learned magistrate in law and fact in refusing to find that the evidence on record supported the appellant's case.xx.The judgement of the learned magistrate in the circumstance is unfair and unjust.

4. Consequently, the Appellant prayed for the following orders:a.The appeal be allowed entirely.b.The appellant’s claim be allowed as drawn in the memorandum of claim.c.The judgement of the subordinate court be set aside with all consequential orders.d.Costs of the appeal be awarded to the appellant.e.Any other relief that this honorable court deems fit and just to grant.

Analysis 5. This being a first appeal, this Court has the duty to analyze and re-examine the evidence adduced in the lower Court and reach its own conclusion but to bear in mind that it neither saw nor heard the witnesses testify and make due allowance for that.

6. In Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR, the Court stated as follows:-“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.”

7. Vide his Memorandum of Claim dated 15th July 2019, the Claimant (now the Appellant) averred that he was orally employed by the Respondent as a casual laborer from the year 1st May 2010 where he worked until July 2013 when he was confirmed on permanent basis and his contract reduced into writing in the position of assistant farm manager at a gross salary of Kshs 10,223 per month.

8. The Claimant contended that he served the Respondent with loyalty, diligence and full dedication until 10th October 2016 when the Respondent wrongfully, unprocedurally and unlawfully suspended him from service without pay.

9. It was the Appellant’s case that the reason stated in the suspension letter for the suspension was an alleged theft which occurred on 7th October when the Claimant was off duty.

10. The Appellant further stated that in December 2016, he was called to appear before the board to answer to the allegations of theft although he was not issued with a notice to show cause.

11. The Appellant asserted that he appeared before the Board and the board was satisfied with his explanation and informed him to await for a letter from the secretary of the board lifting his suspension.

12. The Appellant stated that he never received the said letter despite several efforts to find out the position from the secretary of the board.

13. The Appellant contended that he was unfairly terminated from employment without being paid his terminal dues which he particularized as hereunder:i.One month’s pay in lieu of notice …….. Kshs 10,223ii.Compensation for unfair termination….Kshs 122,676iii.Leave Dues ………….…………..……… Kshs 64,404. 90iv.Anticipated salary ……………………. Kshs 2, 208,168v.Salary during suspension …………...… Kshs 316,913vi.Service pay …………………………………. Kshs 46,000vii.Overtime dues ………………………... Kshs 137,011. 50Total ………………….………………. Kshs 2,905,396. 40

14. The Appellant prayed for the following reliefs:i.A declaration that the Claimant’s services were unprocedurally, unlawfully and unfairly terminated and in the circumstances the Claimant is entitled to compensation of his terminal dues as outlined aboveii.The court be pleased to life the suspension and substitute it with an appropriate order of the courtiii.A declaration that the Claimant is entitled to a salary during suspensioniv.Reinstatement with full salary, benefits and continuity of service without victimizationv.In the alternative, the sum of Kshs. 2,905,396. 40vi.Exemplary damagesvii.Certificate of Service

15. The Respondent on its part filed a Response to Memorandum of Claim dated 5th September 2019 denying the averments made by the Appellant in his claim. The Respondent contended that the Claimant was suspended from work on 10th October 2016 after he was found with stolen items belonging to the instituted. The Respondent stated that the Claimant’s salary was not stopped during the suspension period and that the claimant never reported back to school despite several summons issued to him. The Respondent averred that a notice to show cause was issued to the Claimant but he willfully refused to respond to the same. The Respondent stated that the claimant was not terminated from employment but deserted duty.

16. The Respondent further stated that the Claimant having deserted duty without leave and having refused to report to work when summoned by the respondent, and the Respondent having found him with stolen property belonging to the institution, the Respondent was entitled to its right to summarily dismiss the Claimant pursuant to section 44(3) and 44(4)(a),(e) and (g) of the Employment Act.

17. The Respondent thus urged the court to dismiss the claimant’s claim with costs.

The Evidence adduced 18. At trial the Appellant testified as CW1 and adopted his witness statements recorded on 15th July 2019 as his evidence in chief.

19. In his testimony, the Appellant stated that on 7th October 2016 while he was off duty, he was called by the Bursar to take the locker key to school. He told the Bursar that he was far away and off duty. He stated that the Bursar told him he would break the clocker. That 20 minutes later, the bursar called him and informed him that the locker had been broken and 12 packets of milk and 2 kgs beans were recovered.

20. The Claimant stated that he was suspended from employment on allegations that he had stolen cereals from the Respondent. He stated that he was invited to a disciplinary hearing where he defended himself but was never informed of the outcome of the disciplinary hearing. The Appellant denied that he was issued with a termination letter.

21. On cross examination, the Appellant stated that he appeared before the Board of Management on 20th December 2016 and has never received any communication from the Respondent. He reiterated that he was never issued with the termination letter dated 15th February 2018, filed by the Respondent in its bundle of documents. He also stated that he never wrote a letter to find out why his suspension without pay took long.

22. The Respondent called Hellen Mabose Luhangala, who testified as RW1. She introduced herself as the Principal of Moi Kapsowar High School and the Respondent’s secretary. RW1 adopted her witness statement recorded on 18th November 2019 as her evidence in chief.

23. RW1 told the court that the Claimant was suspended from employment after stolen beans and maize belonging to the Respondent was found in his locker. RW1 stated that the Claimant was also accused of selling milk at the school against the rules and regulations.

24. It was her evidence that the Claimant continued working for the Respondent until 2018 when the Respondent discovered that the Claimant had not changed. The Respondent’s witness stated that the Claimant was issued with a letter after which he deserted duty.

25. On cross examination, RW1 stated that the Claimant was not paid during the period he was on suspension. She also stated that when she reported to Kapsowar High School in 2018, the Claimant was still working for the Respondent. It was her testimony that the Claimant was suspended in 2016 but was not dismissed.

26. After hearing the parties, the trial court delivered its judgment on 19th October 2020 dismissing the Claimant’s suit.

27. It is the said judgment that is now the subject of this appeal.

The Appeal 28. The appeal was disposed of by way of written submissions. Both parties filed their submissions. The Appellant’s submissions are dated 9th February 2024 while the Respondent’s submissions are dated 11th April 2024.

Appellant’s submissions 29. The Appellant submitted on the following issues:i.Whether the claimant is on suspension or the services were terminatedii.Whether the claimant was paid during suspensioniii.Whether the parties satisfied their required standard of proofiv.Whether the clamant is entitled to the prayers in this appealv.Who should bear the costs of this appeal

30. On the first issue, the Appellant submitted that in his pleadings and evidence tendered before the trial court, he proved that he is still on suspension. The Appellant submitted that the trial court’s holding that the Claimant was summarily dismissed is neither supported by the evidence nor the proceedings. The Appellant contended that the Respondent in its pleadings admitted that he is still on suspension.

31. The Appellant maintained that his services were suspended for a very long period unfairly and that he ought to be on pay during suspension.

32. On the issue whether the Claimant was paid during suspension, the Appellant reiterated that since he was suspended by the Respondent he has never received any payments for salaries or otherwise. It was submitted that the Respondent did not produce any document detailing the payments and being a public institution, the Respondent was obligated to keep records of all payments made to its employees as stipulated by section 74 of the Employment Act.

33. The Appellant submitted that based on the evidence on record, there was no basis for the trial court to hold that the Claimant was paid while on suspension.

34. On the third issue, the Appellant submitted that he established before the trial court that he was in the employment of the Respondent up to the time he was suspended. He stated that once he was issued with the notice to show cause he appeared before the board and the board being satisfied with his explanation directed him to report back to work only to receive an SMS from the secretary of the Respondent informing him not to report to work. The Appellant submitted that he was locked out of the school premises prompting him to write a letter which is part of his documents produced.

35. The Appellant thus submitted that he discharged his evidentiary mandate to the standard required by law, and the holding by trial magistrate had the effect of raising the standard of proof beyond the legally established threshold. It is the Appellant’s submission that the Respondent did not demonstrate that the process was fair and justified.

36. The Appellant urged the court to set aside the trial court’s judgement and to allow the instant appeal with costs.

The Respondent’s submissions. 37. In its submissions, the Respondent stated that during the suspension, the Claimant continued to receive his salary and despite being summoned, he never responded to the complaints raised against him, and instead, he resorted to constant absenteeism.

38. The Respondent submitted that when the Appellant finally appeared before the disciplinary committee, the explanation he gave was not satisfactory given the fact that he was found in possession of stolen maize and beans. The Respondent maintained that the Appellant was fairly and procedurally terminated from employment after the Respondent found that the Appellant had stolen the Respondent’s maize and beans and further, that he had engaged in gross misconduct of giving the students unauthorized milk.

39. The Respondent stated that the Claimant was invited to adisciplinary meeting on allegation of theft which he attended in the company of his supervisor, Mr. David Bowen, the Bursar. That the Respondent being dissatisfied with the explanation given by the Appellant, issued a suspension notice to him which notice he did not respond to and instead he chose to desert work completely which led to him being summarily dismissed pursuant to section 44(3) and 44(4) (a), (e), and (g) of the Employment Act 2007 and that the reasons for the termination was explained to him.

40. It is the Respondent’s submission that the termination of the Appellant’s employment was based on a valid and fair reason solely founded on his conduct and that fair procedure was followed in the termination of the Appellant.

41. The Respondent thus submitted that the trial court in its findings considered the evidence of RW1 in rebutting the claim and after analyzing all the evidence before her and applying the law to the facts, the learned magistrate reached a just conclusion finding that the Claimant had failed to prove his claim.

42. The Respondent maintained that the Appellant is undeserving of the reliefs sought in his Memorandum of claim. The court was urged to find this appeal to be unmerited and to dismiss it with costs to the Respondent.

Determination. 43. I have considered the Appellant’s Record of Appeal and the submissions by both parties. The many grounds of Appeal raised by the Appellant relate to the substantive and procedural fairness of the termination of his employment.

44. The Appellant accused the trial court of failing to consider all the evidence submitted and thereby erroneously holding that the Appellant failed to prove his case on a balance of probabilities.

45. The burden of proof that a termination of employment was fair is on the employer who is required to prove that the reasons for the termination are valid and the procedure fair.

46. Section 45(1) of the Employment Act provides that:“No employer shall terminate the employment of the employee unfairly. A termination of employment by an employer is unfair if the employer fails to prove: -a)That the reason or reasons for the termination is valid.b)That the reason for the termination is a fair reason.(i)Related to the employee’s conduct, capacity or compatibility or(ii)Based on the operational requirements of the employer was that the Employment was terminated in accordance with fair procedure”.

47. From the evidence on record, the Appellant was suspended from employment by the Respondent on account of gross misconduct. The Respondent contended that the Appellant was found to have stolen maize and beans belonging to the Respondent and also that he was found with milk which he was selling to students contrary to the Respondent’s guidelines.

48. The Respondent asserted that the Appellant was invited to a Board meeting where he was required to show cause and was thereafter suspended. It is the Respondent’s submission that after being suspended, the Appellant absconded duty.

49. The Appellant on the other hand stated that he was suspended on account of false allegations that beans and maize were found in his locker on 7th October 2016 while he was off duty.

50. The reasons for the Appellant’s suspension were set out in the suspension letter dated 10th October 2016 issued to the Appellant. It reads:Matthew RutoCookRE: Suspension from dutyThe above subject refers, you have been suspended from duty on the following counts:1. Theft case- found with stolen items on 7/10/2016Your suspension starts on 10/10/2016 until you are called to appear before the executive board meeting.Yours faithfullySignedMrs. Dinah Cheruiyot(HSC)Principal/Secretary BOM

51. From the record, it appears that the executive board met on 20th December 2016 as evidenced by the minutes of the said meeting filed by the Respondent in its bundle of documents. From the said minutes, the recommendation was for termination of the Appellant and his other colleagues who were found to be culpable of the allegations levelled against them.

52. At page 39 of the Record of Appeal is a letter dated 15th February 2018 filed by the Respondent. It is reproduced hereunder: -15th February 2018Matthew Kosgei RuttoDear sirsRE: GROSS MISCONDUCT AND NEGLIGENCEIn reference to your personal registry file in school, it has been noted that your performance was not on par with the acceptable level. You have fallen behind majorly in the tasks that you were assigned.Despite the several verbal warnings, you did not show any signs of improvement.This acts amounted to gross misconduct which indicated;i.Gross absenteeism and desertion from dutyii.Slowed work progress,iii.Stealing school items and goods,iv.Engaging in unauthorized business with studentsHabitual negligence which is repeated neglect of duty willfully and misconduct intentionally, knowingly and deliberately affects the schools performance.Even after prior verbal warnings, discussions and reprimand that you disregarded you still failed to perform your duties.Accordingly you are hereby required to show cause why you should not have been dismissed or otherwise punished.We will be out of choices should you fail to submit your explanation as required as it will be presumed that you admit the charges and have no explanation to offer and the issue will be disposed off without any other reference to you.Yours faithfullySignedHellen LuhangalaBOM Secretary

53. During trial the Appellant denied that he was served with the said letter which the Respondent referred to as the termination letter. The question for this court then is whether these are valid and fair reasons for an employer to terminate the employment of an employee.

54. Section 43 of the Employment Act provides that an employer shall prove the reasons for termination of employment. The section provides:(1)In any claim arising out of termination of a contract, the employer shall be required to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of section 45. (2)The reason or reasons for termination of a contract are the matters that the employer at the time of termination of the contract genuinely believed to exist, and which caused the employer to terminate the services of the employee.

55. In this case the offence that the Appellant was accused of occurred in 2016 and he was invited to appear before the Respondent’s board meeting in December, 2016. He was thereafter issued with a letter of termination dated 15th February 2018, more than a year later. The letter is framed as a show cause. The Appellant denied that he received the letter. He states that after he appeared before the board on 20th December, 2016 his suspension was never lifted and he was never allowed to go back to work.

56. There is no evidence that the Appellant was subjected to a further hearing before a decision was made to terminate his employment. There is further no letter of termination of employment. The contents of the letter dated 15th February 2018 do not relate to the hearing of 20th December, 2016. There appears to be a disconnect between the evidence on record and the testimony of RW1.

57. The finding of the trial court that the Appellant did not bother to find out why his suspension took so long was a shift of the burden of proof from the Respondent to the Appellant. The finding that the Appellant was on pay during suspension until he deserted duty is not supported by the evidence on record. Neither is the finding at paragraph 14 of the Judgment that the Appellant absconded duty.

58. I find that the Respondent did not prove that the Appellant was recalled from suspension by letter dated 10th October, 2016. I further find that the Respondent did not prove that the Appellant absconded duty. This court has severally held that where an employer alleges that an employee absconded duty it must demonstrate what action it took to contact the employee to report back to work. There is a disconnect between the decision in the hearing of 20th December, 2016, the letter dated 15th February, 2018 and the termination of the Appellants employment which is not documented or explained by the Respondent. It is inconceivable that the Respondent would send the Appellant on suspension by letter and fail to send him a letter of termination for alleged failure to respond to the letter dated 15th February, 2018.

59. It is for the foregoing reasons that I find that the Appellant proved on a balance of probabilities that he was never recalled from suspension and that there was no proof that he received the letter dated 15th February, 2018, which I have explained, does not fit into the story the Respondent submitted to the court.

60. The Appellant having been unfairly and unlawfully terminated from employment, he is entitled to compensation and payment of his terminal dues. In his Memorandum of Claim, the Appellant prayed for several remedies which I will address in separate heads.a.Declaration that the Claimant’s termination from employment was unlawful, unprocedural and unfair in the circumstances.Having found that the Appellant was terminated without a valid reason or fair procedure, I make a declaration that his termination was unfair and unlawful.b.Terminal benefitsi.One month pay in lieu of noticeThe Appellant’s unrebutted evidence is that he was earning Kshs 10,223 per month. He is entitled to the same as notice pay as provided under section 35 of the Act.ii.Compensation for unfair terminationHaving found that the termination of the employment of the Appellant was unlawful and unfair, this court is clothed with jurisdiction to award compensation. Section 49 of the Employment Act provides for remedies for wrongful dismissal and unfair termination. The Claimant worked for the Respondent for six years. Taking into account the length of the Appellant’s service and relevant factors under section 49(4) of the Act, I award him compensation equivalent to 8 months’ salary at a sum of Kshs 81,784. iii.Leave DuesI decline to make awards under this head as the Appellant did not adduce evidence to show that he is entitled to this prayer.iv.Anticipated salaryThis prayer is declined as the Employment Act does not make provision for such.v.Salary during suspensionThe Respondent did not tender any evidence to show that the Appellant was paid a salary during the long period he was on suspension. I award the Appellant salary from the time he was suspended, that is 10th October 2016 to 15th February 2018 when he was eventually deemed to have been summarily dismissed totaling to Kshs 153,345. vi.Service pay/GratuityThe Appellant’s appointment letter at page 18 of the Record of Appeal provides for payment of gratuity to employees who retire or are retired. Having found that the Appellant was unlawfully terminated I award him gratuity at the rate of 1/12 of each completed month of service which the Respondent is required to compute and pay to the Appellant as the information on record is not sufficient for the court to tabulate the same since it does not have the salary paid to the Appellant every month during the period he was in employment from 1st May, 2010. vii.Overtime duesThe Appellant on trial and even in his submissions on appeal did not tender any evidence in support of this claim. The same is declined.c.The court be pleased to lift the suspension and substitute it with an appropriate order of the courtThis prayer cannot issue as it has since been overtaken by eventsd.A declaration that the Claimant is entitled to a salary during suspensionThe Appellant’s appointment letter is silent on the issue of suspension. I find that the Appellant was entitled to his salary during the suspension period in view of the ambiguity in the circumstances that followed after the disciplinary hearing. I declare it as such.e.Reinstatement with full salary, benefits and continuity of service without victimizationSection 49 (3) (a) of the Employment Act provides for reinstatement if the termination or summary dismissal is found to be unfair. However, section 12 (3) (vii) of the Employment and Labour Relations Court Act provides that an order for reinstatement is only permitted within 3 years of the separation. The Appellant left employment long time ago. This prayer is therefore not available to the Appellant.f.Certificate of servicePursuant to section 51 of the Employment Act, the Appellant is entitled to a Certificate of service.

61. In conclusion, the judgment of the Trial Court dismissing the Appellant’s suit is set aside and substituted with the following:i.A declaration be and is hereby made that the termination of the Appellant was unfair and unlawful.ii.The Appellant is awarded:a.One month pay in lieu of notice .……… Kshs. 10,223b.8 months’ compensation for unfair termination ………………………… Kshs. 81,784c.Salary during suspension ……………..… Kshs. 153,345. d.The Claimant is awarded gratuity to be tabulated by the Respondent based on his salary per month for the entire period he was in employment.iii.The Respondent shall issue a Certificate of Service to the Appellant within thirty days of this judgment.iv.The Respondent shall meet the costs of the Appeal

62. Judgment accordingly.

DATED, SIGNED AND DELIVERED VIRTUALLY ONTHIS 29THDAY OF MAY 2025MAUREEN ONYANGOJUDGE