St Mary's Boys Secondary School and Child Rescue Centre v Githinji (Appeal E028 of 2025) [2026] KEELRC 1074 (KLR) (24 April 2026) (Judgment)

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NYERI REPUBLIC OF KENYA ELRC APPEAL NO. E028 OF 2025 BETWEEN ST. MARY’S BOYS SECONDARY SCHOOL AND CHILD RESCUE CENTRE..................................APPELLANT AND CHRISTOPHER IRUNGU GITHINJI........................................RESPONDENT (Being an appeal against the Judgment of the Hon. Mary Gituma (C.M) delivered on 4th June 2025, in Nyeri MCELRC No. E022 of 2024) JUDGMENT 1. The Respondent, Christopher Irungu Githinji, instituted proceedings against the Appellant before the Chief Magistrate’s Court at Nyeri in CMELRC Cause No. E022 of 2024: Christopher Irungu Githinji v Board of Management, St. Mary’s Boys Secondary School and Child Rescue Centre. In his Amended Statement of Claim, the Respondent averred that he was initially engaged by the Appellant as a security guard around 2013 and remained in employment until February 2023, when he was transferred to the kitchen. He stated that at the time of his termination from employment, he was serving as a cook. 1 2. The Respondent further pleaded that he was first engaged on a one-year fixed- term contract running up to 31st December 2021, after which the Appellant ceased issuing him with written contracts. He nonetheless maintained that he continued in service until his alleged unfair and unlawful termination on 8th February 2024. 3. It was the Respondent’s assertion before the trial Court that on 8th February 2024, he reported back to work after having been granted a short break from late December 2023 until the school reopened. The Respondent averred that on that date, the school principal informed him that his services had been terminated on allegations of theft of a water tap. 4. The Respondent contended that he was not afforded a fair hearing prior to his dismissal from employment, adding that no termination notice was issued to him. 5. It was the Respondent's further assertion that he received a letter dated 11th January 2024, addressed to the Nyeri National Social Security Fund (NSSF) Branch Manager, indicating that his position had been declared redundant effective December 2023. He contended that he was neither issued with a redundancy notice nor a formal termination notice. 2 6. As a result of the foregoing, the Respondent sought a declaratory order that his termination was unfair and unlawful, compensation for unfair termination, one (1) month’s salary in lieu of notice, payment for accrued leave, and release of withheld welfare contributions for two (2) years. The Respondent further prayed for the costs of the suit plus interest. 7. The Appellant countered the Claim through a Statement of Response dated 24th April 2024, contending that it was improperly sued and lacked the capacity to be sued, and therefore urged that the suit be struck out with costs. 8. The Appellant maintained that it had never employed the Respondent, asserting instead that he was employed and remunerated by the De La Salle (Christian) Brothers. 9. The Appellant further contended that the Respondent was well beyond his retirement age and did not protest the contents of the letter dated 11 th February 2024. 10.The Appellant further stated that due to constant theft and vandalism, the school’s Board of Management resolved to engage a private security firm. Former employees of the De La Salle Brothers, including the Respondent, were notified of this decision. 3 11.To this end, the Appellant urged the trial Court to dismiss the Respondent’s suit with costs. 12.At the hearing, both parties called oral evidence, with the Respondent testifying in support of his case and the Appellant calling Francis Njoroge as its witness. The parties thereafter filed written submissions, after which the trial court delivered its judgment on 4th June 2025. 13.In its judgment, the trial Court found in favour of the Respondent, holding that the Appellant was indeed his employer and had the capacity to sue and be sued. The Court further found that in terminating the Respondent’s employment, the Appellant failed to comply with the provisions of the Employment Act, having not subjected the Respondent to a disciplinary process. 14.Consequently, the trial Court concluded that the termination of the Respondent from employment was unfair. Accordingly, the trial Court issued a declaratory order to the effect that the Respondent’s termination was unfair and unlawful and consequently awarded him compensation for unfair termination, notice pay, together with interest and costs of the suit. 4 The Appeal 15.Aggrieved by the findings and orders of the trial Court, the Appellant lodged the present Appeal, raising the following two (2) grounds as set out in the Memorandum of Appeal dated 23rd June 2025. 1) THAT the Honourable learned trial Magistrate erred in law and fact in entering judgment against a non-legal entity in law; Board of Management St Mary’s Boys Secondary School, a private school. 2) THAT the learned trial Magistrate erred in awarding five months general damages for alleged wrongful termination a figure too high in the circumstances. 16.Accordingly, the Appellant has urged the Court to set aside the judgment of the trial court in its entirety with costs. The Submissions 17.The Appeal was canvassed by way of written submissions. It is notable that the Appellant did not file written submissions in this matter, notwithstanding that it filed submissions in the other related matters. 18.On its part, the Respondent submitted that it was not in dispute that the Appellant’s school is a private institution, and that it is managed and 5 administered by a Board of Management following the exit of the De La Salle Christian Brothers as administrators in 2022. 19.The Respondent further argued that it was misleading for the school to continue using letterheads in 2024 indicating that it was still administered by the De La Salle Christian Brothers, despite having left the institution in 2022, thereby prejudicing him and any other person seeking to sue the school. 20.It was the Respondent’s further submission that, unlike most private schools, the Appellant operates through a Board of Management responsible for the day- to-day running of its affairs, rendering the circumstances of this case unique. In the Respondent’s view, a reasonable person faced with such facts would have deemed it appropriate to sue the Board of Management. 21.Referencing the case of The Registered Trustees De La Salle Christian Brothers t/a St. Marys Boys Secondary School Vs Julius D.M Baini (2007) eKLR, the Respondent submitted that despite the Appellant’s assertion that the school is owned by the Registered Trustees of the Archdiocese of Nyeri, previous suits against the school were instituted against its former administrator, specifically the Registered Trustees De La Salle Christian Brothers. 6 22.The Respondent further contended that he instituted the claim against the current administrators upon discovering that the De La Salle Christian Brothers were no longer in charge, and maintained that an entity with the capacity to hire and dismiss employees had the capacity to be sued. 23.The Respondent further submitted that the trial Court properly addressed the issues in controversy and determined the rights and interests of the parties before it. 24.It was the Respondent’s further submission that if, as alleged by the Appellant, the school is registered under the Registered Trustees of the Archdiocese of Nyeri, then the Board of Management acts as its agent or employee, thereby rendering the said Trustees vicariously liable. Analysis and Determination 25.As a first appellate Court, this Court is obligated to re-evaluate the evidence presented before the trial Court alongside the judgment and to arrive at its own independent determination as to whether the appeal is merited. In so doing, the Court is entitled to subject the entire record to a fresh and exhaustive analysis and draw its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify. This position was 7 articulated in Selle & another v Associated Motor Boat Co. Ltd. & others (1968) EA 123. 26.Upon reviewing the record, the rival submissions, and the applicable law, the Court has narrowed down the following issues for determination: - a) Whether the trial Court erred in finding that the Appellant was the Respondent’s employer and had the capacity to be sued. b) Subject to (a), whether the compensation awarded to the Respondent by the trial Court was excessive. Whether the trial Court erred in finding that the Appellant was the Respondent’s employer and had the capacity to be sued 27.The Appellant’s position, both before this Court and the trial Court, is that it is a private school lacking legal personality and therefore incapable of being sued. 28.Disputing this position, the Respondent contends that the Board of Management, having the authority to hire and dismiss employees, equally possesses the capacity to be sued. 8 29.Notably, no contract was produced by the Appellant to demonstrate any employment relationship between the Respondent and the De La Salle Brothers or the Trustees of the Archdiocese of Nyeri. 30.There is therefore no evidence on record to discount the Respondent’s assertion that he was an employee of the Appellant. 31.Beyond asserting that it is a private school and a non-legal entity, the Appellant did not clarify its legal status or the nature of its existence. This uncertainty was compounded by the testimony of DW1, who, under cross-examination, stated that he did not know whether St. Mary’s School is a company, and further indicated that it is neither a partnership nor a sole proprietorship. 32.The record further indicates that DW1 testified, during cross-examination, that the Appellant is managed by a Board of Management which is responsible for hiring and dismissing employees, raising the question as to the capacity in which it exercises these functions. 33.It is also pertinent to note that Section 2 of the Employment Act, defines the term “employer” to mean any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any 9 individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company. 34.From the foregoing statutory definition, it is evident that the term “employer” is given a broad interpretation under the Employment Act so as to encompass entities and persons who may not strictly be parties to a formal contract of service. 35.This position was affirmed by the Court in Daniel Mutisya Masesi v Romy Madan & another [2013] eKLR, where it was held as follows: - “The Employment Act defines the term ‘employer’ expansively, and does not suggest anywhere that directors cannot be joined with their corporate business vehicles in redressing employment wrongs. The Court looks at the whole economic enterprise, not the legal and business reincarnations behind the enterprise.” 36.In light of the foregoing, it is apparent that being the manager of the school, the Appellant Board is not completely distinct from the school in the context of an employment relationship. 37.Therefore, seeing that the capacity of the Board is largely unknown and was not disclosed by the Appellant, the Court has no reason to doubt that it was the 10 Respondent’s former employer within the meaning of Section 2 of the Employment Act. 38.For the foregoing reasons, the Court returns that the trial Court did not err in finding that the Appellant was the Respondent’s employer and that it had the capacity to sue and sued. Whether the compensation awarded to the Respondent by the trial Court was excessive 39.The appellant has further faulted the trial Magistrate for awarding the Respondent compensation equivalent to five (5) months' salary, arguing that it is excessive in the circumstances. 40.From the record, the trial Court observed that the Respondent had worked for the Appellant for two (2) years after it took over management of the school. Accordingly, the trial Court considered the length of the employment relationship in determining the compensation due to the Respondent for unfair termination. 41.Bearing in mind that the trial Court found that the Respondent’s termination was unfair and unlawful, and noting that the Appellant has not challenged that 11 finding, as well as considering the length of the employment relationship, I find no basis to interfere with the award, which in any event, is largely discretionary. Orders 42.Ultimately, I find no basis upon which to interfere with the decision of the learned trial Magistrate. Accordingly, the instant Appeal is hereby dismissed in its entirety with costs to the Respondent. DATED, SIGNED and DELIVERED at NYERI this 24th day of April 2026. ……………………………… STELLA RUTTO JUDGE In the presence of: For the Appellant Mr. Waweru instructed by Mr. Karweru For the Respondent Mr. Gitahi Court Assistant Ndati ORDER 12 In 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 RUTTO JUDGE 13