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Court of AppealPartially AllowedCivil Appeal No. 303 of 2015· [2020] KECA 37 (KLR)

Nebert Bernard Muriuki v Multimedia University of Kenya [2020] KECA 37 (KLR)

Court of Appeal
4 December 2020
4,724 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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The appellant, formerly employed by the defunct Kenya College of Communications Technology (a subsidiary of Kenya Posts & Telecommunications Corporation), claimed discrimination and unfair termination when Multimedia University of Kenya, the successor institution, terminated his services in August 2010 on the stated ground that he had declined absorption into university employment. The Employment and Labour Relations Court had found no discrimination but awarded him only Kshs. 295,568 and a certificate of service. On appeal, the Court of Appeal (Ouko, P., Kiage and Gatembu Kairu, JJ.A) in a single judgment of the court first confirmed the employer/employee relationship with the respondent, then rejected the discrimination claim: the differential terms vis-à-vis newly recruited deputy directors were justified as an inherent requirement of the job under section 5(4)(b) of the Employment Act, the comparators having higher qualifications and having been recruited through interviews the appellant did not attend. However, the court found the termination unfair both substantively and procedurally: the respondent had in effect declared the appellant redundant but failed to comply with section 40 of the Employment Act, including personal written notice and notification of the labour officer, and the proffered reason was invalid as the appellant's letter sought dialogue rather than refusal. Applying section 43 as read with section 45(2) and section 49, the court upheld the trial court's awards (severance, notice pay, gratuity, and salary for August and September 2010) and awarded eight months' salary as compensation for unfair termination. The claim for refund of pension contributions failed for want of evidence. The appeal was allowed with costs.

Key legal issues

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01

Whether the differing terms of service between the appellant and newly recruited deputy directors amounted to discrimination

Holding

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).

Reasoning

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.

p. 4
02

Whether the termination of the appellant's employment was unfair and unlawful

Holding

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.

Reasoning

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.

p. 5
03

Whether the appellant was entitled to compensation for unfair termination in addition to amounts already paid

Holding

Yes; eight months' salary as compensation under section 49, based on his last salary of Kshs. 96,184.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.Appeal allowed with costs
  2. 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. 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. 4.Awarded the appellant eight (8) months' compensation for unfair termination based on his last salary of Kshs. 96,184
  5. 5.Refused refund of pension contributions for July to September 2010 for lack of evidence

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 27
  • Employment ActSection 5(3), 5(4)(b), 5(5), 5(7)
  • Employment ActSection 40(1)(a), (b), (c), (e), (f), (g)
  • Employment ActSection 43 read with section 45(2)
  • Employment ActSection 45
  • Employment ActSection 49
  • Court of Appeal RulesRule 29(1)(a)
  • ILO Convention No. 158 - Termination of Employment Convention, 1982
  • Legal Notice No. 155 of 28th November, 2008

Cases cited (2)

  • Peters vs. Sunday Post
    (1958) E.A 424
  • Kenya Airways Limited vs. Aviation & Allied Workers Union of Kenya & 3 Others
    [2014] eKLR
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.