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ELRCPartially AllowedIndustrial Court Cause (Nakuru) - memorandum of claim filed 28.03.2012· [2013] KEELRC 695 (KLR)

Moses Joseph Okiya v Tracom College Limited [2013] KEELRC 695 (KLR)

Industrial Court of Kenya
19 July 2013
BOByram Ongaya
1,334 words in judgment
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The bottom line

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A Kenyan college that fired a lecturer without notice or a hearing, giving contradictory reasons, was ordered to pay six months' salary as compensation.

What this practically means

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Executive summary

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The claimant, a lecturer in the respondent college's Tourism Department since 28.01.2009 at a gross salary of Kshs.20,250/=, was dismissed by letter dated 5.01.2012 citing student complaints over curriculum delivery and non-attendance of classes, with one month's statutory notice. He sued for declarations of unfair dismissal, salary arrears, allowances, overtime, leave pay, pension contributions, severance pay, general damages, a certificate of service and costs. The respondent contended the dismissal was due to leaking trade secrets. The court found the two reasons contradictory and rejected the respondent's evidence, applying the principle that inconsistent and contradictory evidence must be rejected, and held the termination unfair under sections 43 and 41 of the Employment Act, 2007 for lack of a valid reason and absence of notice and hearing. The respondent's willingness to negotiate was treated as a mitigating factor, attracting compensation of six months' gross salary (Kshs.121,500/=). The without prejudice consent of 3.1.2012, under which the claimant received Kshs.111,547/=, barred the salary arrears and part time claims but not matters outside its scope. Leave, pension and severance claims failed, the latter because there was no redundancy. Judgment was entered for the claimant with a declaration of unfair termination, Kshs.121,500/= payable by 1.9.2013 with interest thereafter, delivery of a certificate of service, and costs to the claimant. Judgment was delivered at Nakuru on 19th July 2013 by Byram Ongaya, Judge.

Key legal issues

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01

Whether the claimant was unfairly dismissed

Holding

Yes - the reason given was not valid and no notice or hearing was given, breaching sections 43 and 41 of the Employment Act

Reasoning

The respondent's witness alleged leaking of trade secrets while the termination letter cited curriculum delivery failures; the court treated the contradictory reasons as unreliable and rejected them. No notice or hearing preceded the dismissal despite alleged misconduct or poor performance. The respondent's willingness to negotiate was considered mitigating, leading to compensation of six months' gross salary rather than a higher award.

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02

Whether the without prejudice settlement consent barred the salary arrears claim

Holding

Yes, for salary arrears and part time claims, but it did not bar claims on matters not covered by the letter

Reasoning

The claimant confirmed the consent signed by his advocate on his instructions and received the agreed Kshs.111,547/=. The court held the consent barred court claims on salary arrears and part time, but did not prevent suit on matters outside its scope, preserving the unfair termination claim.

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03

Entitlement to certificate of service

Holding

The claimant is entitled to a certificate of service

Reasoning

The claimant pleaded non-issue of a certificate of service as unlawful under section 51 of the Employment Act, 2007. The court found the claimant entitled to the certificate and ordered the respondent to deliver it by a specified date.

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Legal principles established

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  • Inconsistent and contradictory evidence must be rejected
  • An employer must establish a valid reason and follow fair procedure (notice and hearing) before termination

Court orders

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  1. 1.A declaration that the termination was unfair
  2. 2.The respondent to pay the claimant Kshs.121,500/= by 1.9.2013, failing interest at court rates from the date of judgment till full payment
  3. 3.The respondent to deliver to the claimant the certificate of service by 1.9.2013
  4. 4.The respondent to pay costs of the case
Jurisdiction invoked
Employment and labour relations jurisdiction under the Employment Act, 2007 (first-instance industrial cause)

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, "Moses Joseph Okiya v Tracom College Limited [2013] KEELRC 695 (KLR)", Case Analysis (2013). Industrial Court Cause (Nakuru) - memorandum of claim filed 28.03.2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/695/eng@2013-07-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.