JOSEPH OLUOCH OMOLE V CATHOLIC UNIVERSITY OF EASTERN AFRICA [2013] KEELRC 519 (KLR)

The stated reason for termination was misconduct, making the section 41 procedure mandatory: the employer must explain the reasons to the employee and hear representations before termination. The consultative meeting minutes showed no proper process, warnings were never documented, and the Respondent flouted its own Staff Manual by dispensing with a disciplinary committee. Even where summary dismissal is justified, due process must be observed. On the evidence, the procedure was not followed, so the termination was unfair under section 45(2).

Counsel for the Claimant relied on the Court of Appeal decision in Gad David Ojuando v Maseno University, which ordered payment of salary arrears to retirement age. The Court held that payment for the unexpired term of a contract effectively orders specific performance of employment, which the Employment Act permits only in very exceptional circumstances. On the facts, no such circumstances existed, so the prayer failed.

The payslip showed the Claimant was a contributing member of the Provident Fund, but no evidence established the actual date of transition from gratuity to Provident Fund. The employer, bearing the evidential burden on this head, could not prove the transition date, so the Claimant was entitled to all gratuity earned as at the date of the transition.