Nebert Bernard Muriuki v Multimedia University of Kenya [2020] KECA 37 (KLR)
The bottom line
#Kenya's Court of Appeal ruled Multimedia University unfairly terminated an employee's job, but his discrimination claim failed because different pay was justified by job requirements.
What this practically means
#Executive summary
#Key legal issues
#Whether the differing terms of service between the appellant and newly recruited deputy directors amounted to discrimination
No discrimination; the differential treatment was based on inherent job requirements, qualifications and recruitment channels, and the employer discharged its burden under section 5(7).
The deputy directors were interviewed, employed on contractual terms and held higher qualifications, whereas the appellant remained on permanent and pensionable terms and did not apply when the positions were advertised. Section 5(4)(b) of the Employment Act permits distinction on the basis of an inherent requirement of a job. The assertion that the appellant lacked qualifications for the post he sought was not controverted, so the respondent discharged the burden of disapproving discrimination.
Whether the termination of the appellant's employment was unfair and unlawful
The termination was unfair both substantively and procedurally; the stated reason (declining absorption) was invalid because the appellant's letter sought dialogue, not refusal, and the respondent failed to comply with section 40's redundancy requirements.
By its letter of 18th August 2010 using the word 'retrenchment', the respondent in fact declared the appellant redundant. The appellant's letter of 30th June 2010 sought discussion of his concerns, not refusal of the appointment, so the respondent acted prematurely and in a rush. There was no personal written notice of redundancy to the appellant nor notification of the labour officer as section 40 requires, and the reason for termination was therefore neither valid nor fairly arrived at.
Whether the appellant was entitled to compensation for unfair termination in addition to amounts already paid
Yes; eight months' salary as compensation under section 49, based on his last salary of Kshs. 96,184.
Section 49 permits compensation equivalent of a number of months' wages not exceeding twelve. Considering the manner in which the appellant's services were terminated and the length of his service, the court assessed eight months' compensation on his last salary. The trial court's other awards on salary, house allowance, severance, notice pay and gratuity were found to be free of error.
Legal principles established
#- An employer bears the burden of proving that discrimination in employment did not take place as alleged.
- An employer may distinguish, exclude or prefer a person on the basis of an inherent requirement of the job without that amounting to discrimination.
- Before terminating employment on account of redundancy, the employer must personally notify the affected employee in writing and the labour officer, and comply with the other conditions in section 40 of the Employment Act; the notice requirement applies even where wages in lieu of notice will be paid.
- In every termination of employment, the employer must prove the reason or reasons for the termination; where the reason is invalid or unproved and no fair procedure is followed, the termination is unfair both substantively and procedurally.
- On a first appeal, the Court of Appeal must re-appraise the evidence and draw its own independent inferences of fact while acknowledging the trial court's advantage of seeing and hearing the witnesses.
Court orders
#- 1.Appeal allowed with costs
- 2.Upheld the trial court's award of salary and house allowance of Kshs. 96,184 and 51,600 per month respectively for August and September 2010
- 3.Upheld payment of severance pay of Kshs. 5,661,740, notice pay of Kshs. 174,880, gratuity of Kshs. 696,069.80 and other heads totalling Kshs. 6,067,425.33 less unpaid loan of Kshs. 2,196,817.20
- 4.Awarded the appellant eight (8) months' compensation for unfair termination based on his last salary of Kshs. 96,184
- 5.Refused refund of pension contributions for July to September 2010 for lack of evidence
- On appeal from
- Employment and Labour Relations Court at Mombasa
- ELRC Case No. 1200 of 2013
- Jurisdiction invoked
- First appeal under Rule 29(1)(a) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nebert Bernard Muriuki v Multimedia University of Kenya [2020] KECA 37 (KLR)", Case Analysis (2020). Civil Appeal No. 303 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/37/eng@2020-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.