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ELRCPartially AllowedCause No. 907 of 2012 (as per Memorandum of Claim filed 13th April 2012)· [2015] KEELRC 1000 (KLR)

Beatrice Mola v Kenyatta University & 3 others [2015] KEELRC 1000 (KLR)

Employment and Labour Relations Court
15 April 2015
3,646 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, a Purchasing Officer employed by Kenyatta University from 1st April 1997, was suspended on 6th December 2011 over the receipt of 336 computers that did not meet specifications, appeared before the Senior Board of Discipline on 12th January 2012, and was terminated by letter dated 12th March 2012. She sued Kenyatta University and three of its officers, claiming terminal dues, reinstatement in the alternative, and compensation for unlawful termination, alleging she was denied due process and made a scapegoat for the ICT officer who actually received the goods. The Respondents maintained due process was followed and sought dismissal. The court first struck out the 2nd to 4th Respondents, holding that no personal liability attaches to officers acting for a disclosed principal, applying Morgan Air Cargo v Evrest Enterprises. On the merits, the court found the Claimant was not terminated for just cause: the goods were received by Mr. Nganga, who was later reinstated, and at worst the Claimant's error merited only a reprimand. Reinstatement was refused as outside the statutory 3-year limit, so the court awarded maximum compensation of 12 months' salary under Section 49(1). Gratuity and service pay were refused as she was on permanent and pensionable terms. The Respondents conceded notice pay, 48 days' leave, luggage and baggage allowance, and CBA arrears. The court awarded the withheld half salary during suspension, the conceded dues, compensation, and a certificate of service. Because the Claimant sued before her internal appeal was heard, each party was ordered to bear its own costs.

Key legal issues

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01

Whether the termination was unfair or unlawful

Holding

The termination was unlawful; the Claimant was not terminated for just cause and is awarded the maximum 12 months' compensation under Section 49(1).

Reasoning

The evidence showed the goods were received by Mr. Nelson Nganga, who admitted receiving them. At most the Claimant erred in issuing the Goods Received Note for goods the ICT director approved, which did not justify termination - a reprimand or warning would have sufficed. Reinstatement was no longer available as the statutory 3-year limit had passed, so maximum compensation of 12 months' salary was awarded under Section 49(1).

p. 6
02

Whether the Claimant is entitled to gratuity or service pay

Holding

Not entitled; she was on permanent and pensionable terms and is entitled to draw her pension.

Reasoning

The Claimant was employed on permanent and pensionable terms, so the heads of gratuity and service pay do not arise; her entitlement is to her pension. However, having been suspended for an unjust cause and terminated on a false premise, she is entitled to the half salary withheld during suspension.

p. 6
03

Whether the 2nd to 4th Respondents should remain parties

Holding

Their names were struck out; they acted on behalf of the 1st Respondent and no personal liability attaches to them.

Reasoning

Relying on Morgan Air Cargo v Evrest Enterprises, the court held an agent for a disclosed principal is not liable for authorised actions. Although the officers could fall within the Employment Act definition of employer, suing them was superfluous since they acted on behalf of Kenyatta University; their names were struck out with no order as to costs.

p. 5
04

Whether unfair termination must be expressly pleaded

Holding

A finding of unfair termination can be made even where a party has not expressly pleaded unfair termination.

Reasoning

The Respondents argued, relying on Evans Ochieng Nudih v Equity Bank, that the Claimant had not pleaded unfair termination and that unlawful and unfair termination are distinct. The court agreed the concepts are distinct but held that a decision on unfair termination may still be made absent an express plea.

p. 5
05

Costs

Holding

Each party to bear its own costs because the Claimant sued before the internal appeal mechanism concluded.

Reasoning

The Claimant lodged an appeal on 26th March 2012 and filed suit on 12th/13th April 2012, before the appeal was heard. Had she pursued the appeal she might have been reinstated like Mr. Nganga. The court therefore declined to award costs to either party.

p. 6

Legal principles established

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  • No personal liability attaches to officers sued for actions undertaken on behalf of an employer; an agent for a disclosed principal is not liable for authorised actions
  • The burden of proving unfair termination or wrongful dismissal rests on the employee, while the burden of justifying the grounds for termination rests on the employer (Section 47(5) Employment Act)
  • Dismissal is disproportionate where the employee's alleged error would not justify termination; a reprimand or warning would suffice, warranting maximum compensation under Section 49(1)

Court orders

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  1. 1.Striking out the names of the 2nd, 3rd and 4th Respondents from the suit, with no order as to costs in that regard
  2. 2.Judgment entered for the Claimant against the sole Respondent Kenyatta University for: (1) half salary withheld in December 2011, January 2012, February 2012 and March 2012; (2) payment for 48 days leave not taken; (3) payment of 3 months salary in lieu of notice; (4) arrears of basic pay and house allowance as per CBA for 20th September 2012; (5) 12 months salary as compensation; (6) certificate of service in terms of Section 51 of the Employment Act
  3. 3.Each party to bear its own costs

Authorities

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Legislation

  • Employment Act 2007Section 44(4)
  • Employment Act 2007Section 47(5)
  • Employment Act 2007Section 41
  • Employment Act 2007Section 43(2)
  • Employment Act 2007Section 49(1)
  • Employment Act 2007Section 51
  • Labour Relations Actnot specified
  • ILO Conventionnot specified
  • ILO Declaration on the Fundamental Principles and Rights of Workersnot specified

Cases cited (11)

  • Kenya Ports Authority v Silas Obengele
    [2008] eKLR
  • Beautta Anselmo Maali v Ethiopian Airlines Enterprises
    HCCC 635 of 2007
  • Kenya Revenue Authority v Menginya Salim Murgani
    [2010] eKLR
  • Patrick Njuguna Kariuki v Del Monte (K) Ltd
    [2012] eKLR
  • George Onyango Akuti v G4S Security Services Kenya Limited
    [2013] eKLR
  • Evans Ochieng Nudih v Equity Bank Limited
    [2014] eKLR
  • Mary Chepmweno Kiptui v Kenya Pipeline Company Limited
    [2014] eKLR
  • Peter Lichungu v Kenya Power and Lighting Company
    [2014] eKLR
  • Margaret A Ochieng v National Water Conservation & Pipeline Corporation
    [2014] eKLR
  • Morgan Air Cargo Limited v Evrest Enterprises Limited
    [2014] eKLR
  • Nicholas Mwenda Mtwaruchiu & 7 Others v Ethics and Anti-Corruption Commission & 5 Others
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (employment dispute; no specific constitutional article invoked)

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, "Beatrice Mola v Kenyatta University & 3 others [2015] KEELRC 1000 (KLR)", Case Analysis (2015). Cause No. 907 of 2012 (as per Memorandum of Claim filed 13th April 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1000/eng@2015-04-15

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