University of Nairobi v Ogot (Civil Appeal E125 of 2021) [2025] KECA 1736 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a finding that the University of Nairobi unfairly fired a professor, replacing reinstatement with damages for the rest of his contract.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial Judge erred in law by admitting new evidence through the affidavit of Prof. Isaac Mbeche to vary the decision made by the appellant's disciplinary committee
- 2.In view of the finding on the first issue, whether the trial court's order should stand or be set aside
Key legal issues
#Admissibility of Prof. Mbeche's affidavit at trial
The affidavit was properly before the trial court because the parties agreed to proceed by affidavits, witness statements and submissions, and no objection was raised; the authorities on admitting new evidence on appeal were distinguishable as the affidavit was tendered at trial, not on appeal.
The Court distinguished Wanga, Otieno Ragot and Kidero as concerning evidence introduced at the appellate stage or in time-bound election petitions. Here the parties agreed under Rule 21 of the ELRC Rules and section 61 of the Evidence Act to dispose of the claim by documents. The respondent filed Prof. Mbeche's sworn statement in his list of documents and the appellant never objected or sought cross-examination, so it could not challenge admission on appeal.
Validity of the reason for termination
No valid reason existed: the memo's contents were factual, mirrored Gazette Notices Nos. 360 and 361, and the memo was issued on the authority of the Acting Vice Chancellor and the Board.
The Council's admission that the charge of insubordination of the Council could not be sustained showed the Council had been revoked. With no substantive Vice Chancellor or Council, the Board stepped in and the Acting VC instructed the respondent to issue the memo. Since the memo restated the gazette notice, there could be no insubordination, and the termination was unfair and malicious.
Burden of proof under section 45 of the Employment Act
The employer bore the burden of proving a valid and fair reason and fair procedure; the procedure was fair (unchallenged) but the reason was invalid, so the termination was unfair.
Under section 45(2), the employer must prove a valid reason, a fair reason related to conduct, capacity or compatibility or operational requirements, and fair procedure. The trial Judge's finding that the disciplinary procedure was fair was unchallenged, but the ground of insubordination was not well-founded, so the employer failed to discharge its burden.
Remedy: reinstatement versus damages for unexpired term
Reinstatement was moot because the five-year contract had expired; in lieu, the respondent receives damages for the unexpired term as particularized in his pleadings, preserving the trial Judge's exercise of discretion.
The Court held the reinstatement issue moot since the contract term had run out by effluxion of time. To give effect to the trial Judge's discretion, the respondent should recover what he would have earned had his employment not been unfairly and unlawfully terminated, computed per the particulars of salary and allowances claimed.
Legal principles established
#- Where parties agree under section 61 of the Evidence Act to dispose of a claim by way of documents, affidavits and written submissions, that agreement is binding and a party cannot renege on it on appeal.
- A claim for unfair termination before the ELRC is not a judicial review of the disciplinary process; the court examines the fairness of the termination under section 45 of the Employment Act, not merely the process before the disciplinary committee.
- The employer bears the burden under section 45(2) of the Employment Act of proving that the reason for termination was valid and fair; where the impugned conduct restated factual gazette notice content and was issued on the instruction of the Acting Vice Chancellor, there is no valid reason of insubordination.
- Where a collective decision of an employer's board gives rise to the alleged misconduct, disciplining a single employee for it is unfair and discriminatory and evidences malice.
- On the first appellate mandate, the Court re-evaluates evidence and draws its own conclusions while making due allowance for not having seen or heard the witnesses (Selle v Associated Motor Boat Co Ltd).
Court orders
#- 1.The judgment of the ELRC Cause No. E617 of 2021 delivered on 5th March 2021 by M. Onyango, J., is upheld in part
- 2.The finding that the termination of the respondent was unlawful and unfair is upheld
- 3.The order reinstating the respondent to the position of Deputy Vice Chancellor, Research, Production and Extension is set aside
- 4.The appellant is ordered to pay the respondent damages for the unexpired term of his contract, from 19th June 2020 to July 2024, as particularized (salary, housing, responsibility, entertainment, car, telephone and leave allowances)
- 5.The appellant to issue a certificate of service to the respondent
- 6.The appellant bears the costs of the claim in the ELRC and of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court
- Cause No. E617 of 2020 (referred to in the final orders as ELRC Cause No. E617 of 2021)
- Jurisdiction invoked
- First appeal from the Employment and Labour Relations Court under the Employment and Labour Relations Act and the Court of Appeal's appellate jurisdiction
Relief refused
#Reinstatement of the respondent to the position of Deputy Vice Chancellor, Research, Production and Extension
The five-year contract had expired by effluxion of time, rendering the reinstatement order moot
Costs
The appellant bears the costs of the respondent's claim in the ELRC and the costs of the appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The finding that the termination of the respondent was unlawful and unfair is upheld;
The order reinstating the respondent to the position of Deputy Vice Chancellor, Research, Production and Extension is set aside;
the appellant is hereby ordered to pay the respondent damages for the unexpired term of his contract, that is from 19th June 2020 to July 2024
The appellant issues a certificate of service to the respondent; and, 3. The appellant bears the costs of this Claim in the ELRC and of this appeal.
We therefore find that the termination of the respondent's employment was not valid as the grounds upon which it was based were not well-founded.
Choosing to discipline the respondent alone was proof of malice.
We find that it was within the parties' discretion to agree on how to proceed with their case, which agreement would be binding upon them and to renege on the same at this stage would tantamount to an afterthought and ought not to be allowed.
Issues in the judgment
#Internal inconsistency on the date of the gazette notices revoking the Vice Chancellor's appointment: paragraph 3 and elsewhere state 17th January 2020, but paragraph 62 refers to 17th February 2020.
Garbled sentence introducing the final orders in paragraph 71.
Inconsistent case number for the decision below: the memorandum of appeal and narrative refer to ELRC proceedings commencing 2020 (statement of claim dated 6th October 2020), while the final orders describe the judgment as in 'ELRC Cause No. E617 of 2021'.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "University of Nairobi v Ogot (Civil Appeal E125 of 2021) [2025] KECA 1736 (KLR)", Case Analysis (2025). Civil Appeal (ELRC Appeal from ELRC Cause No. E617 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1736/eng@2025-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.