[2025] KEELRC 895 (KLR)

Wafula v Principal, Masimba High School & another (Cause E066 of 2023) [2025] KEELRC 895 (KLR) (19 March 2025) (Judgment)

Neutral citation: [2025] KEELRC 895 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Kisumu

Cause E066 of 2023

Nzioki wa Makau, J

March 19, 2025

Between

Stephen Wanjala Wafula

Claimant

and

Principal, Masimba High School

1st Respondent

Board of Management, Masimba High School

2nd Respondent

Judgment

1. Stephen Wanjala Wafula (the Claimant) filed a Statement of Claim dated 29th August 2023 seeking several remedies, to wit: a declaration that the stoppage of his salary was unlawful; reinstatement of his salary; the release of his outstanding salaries and benefits; damages for the violation of his right to fair labour practices; and an injunction preventing further withholding of his salary.

2. In response, the Respondents filed their initial response dated 13th September 2023, which was subsequently amended twice—on 12th June 2024 and 15th July 2024.

3. The matter proceeded to hearing with the Claimant testifying in support of his case and two witnesses testifying on behalf of the Respondents. The Claimant was led in evidence by his Advocate Mr. Marita. The Claimant testified that he was not subjected to any disciplinary procedure. He asserted he was neither given an oral warning nor any written warning. He did not receive any letter suspending or terminating his services. He says he got to know of the criminal proceedings when the court gave orders for him to resume work. He testified that the case was terminated but he never was allowed to resume his service to the Respondent. The Claimant further testified that he was never paid despite demands made to the Respondents.

4. In cross examination he testified that he was employed by the Board of Management of Masimba High School and issued an appointment letter. He stated that he earned around Kshs. 30,000/- at the time of his engagement and that the salary was later raised to Kshs. 140,000/-. He said he was never issued with a show cause and that it was not true to suggest that he was issued with a show cause which he ignored. He testified thar he never absconded duty and that he was aware there were fraud investigations against him upon his being taken to DCI to record a statement. He denied misappropriating Kshs. 14 million from the School. When he was referred to the letter of appointment, he stated it was signed and stamped and identified the signature of Mr. Orure the Principal of Masimba Secondary school. He said he was a bursar from 2015 to date. He indicated he was still working for the Respondent. He confirmed that he had not given the letter of salary increase in evidence. He testified he was a CPA III. He stated he was not allowed back after the charges were levelled against him.

5. In re-examination, he testified that he was not aware of any notice to show cause and that his CPA qualifications had not been contested and that he was aware from his follow up with the ODPP that directions were given to drop the charges. He indicated the salary increase was a decision of management of the school. He testified that he had no authority to cause an increase of salary. He testified that there were orders issued for him to report back to work and that he reported to work. That marked the end of testimony for the Claimant.

6. The Respondents called 2 witnesses – Mr. Cliff Ongeri Getanda the Parents Association Chairperson and Mr. Nyauma Makaa the former Principal of Masimba School. Mr. Getanda testified he had been in that position for 1½ years and that as chair he had interacted with the Claimant. He stated that the Claimant absconded duties in 2023 and that the Board issued a show cause. He stated that he was not aware if the Claimant responded to the show cause. On further questioning by State Counsel he testified that the Claimant did not respond to the show cause. He stated the Claimant gave himself a salary increase to Kshs. 114,000/- a month. He testified that per the Ministry of Education guidelines, the salary of a bursar was between Kshs. 31,000 to Kshs. 41,000/-. He said no bursar earns the sum the Claimant earned, terming it fraud.

7. In cross-examination he stated that the Chairperson before he took over was Ms. Rosa Nyaroo. He stated that he worked with the Claimant for 2 months. He confirmed the Claimant was employed at Masimba School from 2015 and was issued an appointment letter. He stated the appointment letter was not from the School. He indicated that the letter before the Court was not from the School as it was neither signed nor stamped. He confirmed that the Principal in 2007-2018 was Mr. Meshack Orure. He testified that the Respondent did not attempt to contact Mr. Orure. He stated there was no examiners report on the signature in the letter. He stated that the letter issued to the Claimant did not match with other letters issued to other workers. He indicated the letters issued to the other employees were availed and that those were the genuine letters. He insisted the one shown by the Claimant was not genuine and that it was not from the institution. He testified that the Claimant deserted duty and that letters had been availed to State Counsel on the other workers with the said genuine letters. He indicated the State Counsel was given the notice issued to the Claimant as well as the suspension letter. He stated there was an OB details of which were with the State Counsel. He admitted he had not come across the letter of March 2024 from the ODPP. He however conceded the documents he had adverted to relating to the other employees and the OB were not part of the evidence attached in the case before the Court.

8. In re-examination by the State Counsel Ms. Orege, the witness stated that the letter addressed to Mr. Evans Machogu was from the School whilst the one to the Claimant was from the Ministry of Education. He stated the letter did not emanate from the School and asserted the Bursar is employed by the School. He testified the letter from the Claimant was not even signed and does not have a stamp. He stated the letter of suspension was by hand delivery.

9. The second witness for the Respondent was Mr Makaa. He testified that he was the Principal of Masimba School for 1½ from March 2023 to early September 2024. He stated that he interacted with the Claimant. He said the Claimant was given a show cause for his absenteeism in April 2023. He posited the date would be around 5th April. He stated that the letter was hand delivered and that the person who was given the letter indicated that he had served the Claimant. He testified that the Claimant did not respond to the letter. He stated that the issue of salary arose during the handover and taking over of accounts when the auditors noted a sum of Kshs. 14 million as missing. He testified that part of this loss was attributed to the Claimant through his salary of Kshs. 92,000/-. He stated that the Ministry of Education through the Minister Prof Kilemi Mwiria had a salary structure of Kshs. 31,000/- as minimum and Kshs. 41,000/- as the maximum. He stated that all accountants earn within that range and the School had a band of Kshs. 15,000/- to Kshs. 10,000/- for a CPA 1. He testified that the School Board of Management employs the Bursar. He stated that the Claimant used to issue computer generated receipts and he changed that to government issued receipts as he was of the view the computer generated receipts were illegal and not from the School. He stated that he wrote a letter seeking to establish whether the Claimant was an employee of the School and that by the time he left the School the Audit report was awaited. He stated it was the DCI that sought the Ministry to audit the School.

10. In cross-examination he stated that he was not aware of any grant of leave to amend. He conceded the amendment could be without permission. He testified that he took over from Mr. Meshack Orure. He indicated that the letter on the file was not signed by Mr. Orure nor was it stamped. He testified that the Claimant was given a show cause letter for absconding duty. He stated that someone was given the letter to serve the Claimant. He stated he did not know if the Claimant received it because there was no response. He said only the person given the letter to serve could confirm if he delivered it. He stated he was not aware of the Claimant’s complaint to the Labour Office. He testified that there was no payment of the Claimant’s salary from June 2022 to March 2023. He indicated he was called to the Labour Office and attended a meeting and there was to be a response to the grievances raised. He indicated he responded alongside the Board at the Labour Office. He testified he did not recall if he met the Claimant there. He stated the letter was not from the School. He conceded that Meschack Orure was not scheduled as a witness for the Respondents. He testified that the payroll was prepared and sent to the Principal and then approved by the Principal and the Board and payments made to the employees. He testified that the payslips are signed and stamped by the Principal. He stated that the issue was discussed with the Sub-County Director of Education and later a full Board sat and discussed. He stated that the minutes were at the School and that the Claimant’s services were not terminated. He testified that by the time he left the Claimant had not been terminated or suspended. He stated the Respondents issued a cheque which was not cashed. He asserted only Kshs. 10,000/- was paid from July. He indicated that a surcharge can only be considered once the audit report is received. He stated the computer generated receipts were with State Counsel.

11. He was re-examined by State Counsel and stated that there were some letters from the Labour Office. He stated that the school security was given the letter to serve the Claimant and reported that he had served the Claimant. That marked the end of oral testimony on both sides.

12. Thereafter, both parties filed written submissions.

Claimant’s Submissions 13. The Claimant submits, as a preliminary point, that the amended response and counterclaim, along with the further amended response and counterclaim, should be struck out as they were filed after the close of pleadings without leave of the court. In support of this position, the Claimant highlights that the Respondents entered appearance on 7th September 2023 and filed their response on 13th September 2023. However, they subsequently amended their pleadings on 12th June 2024 and 15th July 2024, well beyond the prescribed timelines. Additionally, the Claimant refers to Rule 13(1) of the Employment and Labour Relations Court Rules 2016, which requires a response to be filed within 21 days from the date of receiving summons. He also cites Rule 13(4) of the same rules, which stipulates that pleadings are deemed closed 14 days after the service of a reply or response to pleadings.

14. On the issue of the stoppage of his salary, the Claimant submits that it was unlawful and unjustified. He asserts that an employee’s salary is statutorily protected and can only be withheld in cases of disciplinary proceedings or as permitted by law. He emphasizes that, at the time of the stoppage, his employment was still valid, and there was no evidence to suggest that he was on suspension or interdiction. To support his position, the Claimant cites section 17(1) of the Employment Act, which obligates an employer to pay an employee’s full wages for work performed under a contract of service. He also cites section 17(10)(a) of the Act, which holds an employer criminally liable for failing to pay wages due to an employee. Additionally, he invokes Article 47 of the Constitution, which requires that any administrative action be accompanied by written reasons. The Claimant further submits that there is no evidence that he was ever served with a notice to show cause, as alleged by the Respondent. In any event, he asserts that disciplinary proceedings cannot serve as a justification for withholding salary. He relies on the cases of Peterson Ndung’u & 5 others v Kenya Power and Lighting Company Limited [2014] eKLR, Carilus Nyawiri v Judicial Service Commission & Another [2021] eKLR and Odongo v Masinde Muliro University of Science and Technology (Cause 30 of 2023) [2023] KEELRC 1761 (KLR) (13 July 2023) (Judgment) where the common thread was that the practice of the stoppage of salary while an employee was on suspension or undergoing a disciplinary process was unjustifiable in law.

15. Additionally, the Claimant submits that there is no proof that his contract of employment was forged or that his payslips were falsified. He points to the fact that the payslips were stamped and verified by the principal and equally notes that the former Principal who signed his contract of employment was not called to testify. He further asserts that no evidence was presented to show that the pending criminal investigations by the Directorate of Criminal Investigations (DCI) had found him culpable of any wrongdoing. In conclusion, the Claimant submits that the withholding of his salary has caused him immense hardship, including the accumulation of rent arrears, his children being sent home from school due to unpaid fees, and his general inability to meet basic living expenses. For these reasons, he urges the court to allow his claim.

Respondents’ Submissions 16. The Respondents identify the following issues for determination:a.Whether the stoppage of the Claimant’s salary was unlawfulb.Whether the Claimant is entitled to reliefs sought.

17. On the first issue, the Respondents submit that the seriousness of the allegations against the Claimant —namely, increasing his salary and receiving funds from parents through his personal number—justified his suspension pending investigations. Furthermore, they contend that the Claimant’s absence from work on or about 5th April 2023, indicated a lack of interest in his job, necessitating a notice to show cause that would elicit an explanation. In view of the foregoing the Respondents submit that the Claimant’s conduct amounted to a repudiation of his contract. They cite the case of Mwendwa Ndoo Mainga v Katrina Hotel Limited [2020] eKLR where the court in similar circumstances held:“.... The Claimant, perhaps apprehensive of arrest by the Police after getting wind of the arrest of his colleague decided to keep off work. He disappeared and left his jacket. 16. In the view of the Court, this was not a case of unfair termination of contract but repudiation of the contract by the Claimant.”

18. Additionally, the Respondents submit that because the Claimant had absconded from duty, it was not possible to issue him with a notice of salary stoppage. To support this position, they rely on the case of Hezron Ngaira Sereuwa v Pemwe Services Limited [2021] eKLR, where the court was stated:“Quite often when an employee absconds work, the employer is not duty bound to look for the employee as the employee cannot be forced to come to work”

19. On the second issue, concerning the reliefs sought, the Respondents reiterate that the Claimant breached his contract of employment and, as a result, is not entitled to any relief. Accordingly, they urge the court to dismiss the suit with costs.

20. The Court has considered the pleadings filed, the evidence as well as the testimony adduced in coming to this determination. The Claimant was accused of impropriety and there was involvement of the DCI in the investigations that ensued. It was common cause that the Claimant was a bursar at the School. In isolating the issues for determination, it would be opportune to note the issues narrow down to:-a.Whether the stoppage of the Claimant’s salary was unlawful.b.Whether the Claimant is entitled to reliefs sought.

21. The Claimant’s salary was stopped sometime in 2023 after the Claimant was taken to the DCI to record a statement. It is apparent the Claimant was not subsequently charged with any offences. The Claimant and the defence witnesses concur the salary stopped. One witness for the Respondent indicated the Claimant had not been suspended or stopped from serving the Respondents when he was Principal. It is apparent there was no payment of salary from sometime in 2022 till 2023 when the Claimant finally opted to file suit. It is apparent the Respondents resiled from the contract they had with the Claimant. On one hand, it is asserted the Claimant was not employed by the Board of Management but on the other hand it is acknowledged he served as the School Bursar from circa 2015 till around 2023 when the engagement ran into head winds. From the Claimant, it was asserted he earned Kshs. 114,000/- which the Respondents maintained was fraudulently acquired since no justification or procedure was followed to enhance the sum to the high figure the Claimant earned.

22. The Respondents attempted to seek the sum allegedly overpaid as inflated salary through what was titled amended defence and counterclaim. However, the Respondents did not seek leave of the Court to file the alleged counterclaim as the suit was filed in 2023 and pleadings closed by early 2024. The attempt to file a counterclaim without leave in mid 2024 was misplaced and without any legal foundation. The counterclaim is thus dismissed with no order as to costs.

23. Having regard to the directive by the Ministry of Education on salary for a Bursar, I find that the competent sum to award would be Kshs. 41,000/- as contained in the directives by the Ministry of Education on pay for a Bursar. The Court gave an order that the Claimant was to be paid his salary, an issue conceded both by the witnesses before Court and the affidavit by the Respondents’ witness Mr. Nyauma Makaa sworn on 6th June 2024. In it, it was conceded that there was a Ruling to the effect that salary from February 2023 would be payable. Only a sum of Kshs. 10,000/- was paid meaning there are arrears of unpaid salary. The Claimant was given a return to work letter dated 3rd June 2024. It is not clear why he never managed to serve as Bursar and to that end he would be mollified by an award of some compensation for the termination of services through the conduct of the Respondents.

24. The Court therefore finds in favour of the Claimant on the first question, to wit, the stoppage of salary was unlawful. If the Claimant was entitled to be suspended, he would have been entitled to half salary for duration of suspension. A complete stoppage of salary was therefore unlawful in the circumstances.

25. The second question is on the reliefs the Claimant is entitled to. The Claimant was entitled to notice prior to being dismissed and therefore he would get one month’s salary as notice. Taking into account the reasons for the disconnect between the Claimant and his employer, a compensation of 2 months salary would suffice considering the Claimant is still capable of obtaining employment and because he is recovering money for the months the orders subsisted in his favour.

26. In the final analysis I enter judgment for the Claimant against the Respondents jointly and severally for:a. Unpaid salaries from February 2023 to May 2024 (16 months) when the Ruling No. 2 was delivered by Radido J. less Kshs. 10,000/- paid = Kshs. 646,000/-b. One month’s salary as notice – Kshs. 41,000/-c. Compensation for the dismissal without following procedure – equivalent to 2 months salary – Kshs. 82,000/-.d. Interest at court rates on the sums in a), b) and c) above from the date of judgment till payment in full.e. Costs limited solely to the sums awarded in a), b) and c) above.It is so ordered.

DATED AND DELIVERED AT KISUMU THIS 19TH DAY OF MARCH 2025NZIOKI WA MAKAU, MCIArb.JUDGE