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ELRCPartially AllowedCause relating to Daniel K. Cheboi (initial Memorandum of Claim filed 8 August 2013 by William Morogo Mutwo, Amos Sasine Kitaika and Peter M. Okemwa; claim separated by direction of 11 November 2014)· [2015] KEELRC 1134 (KLR)

Daniel K. Cheboi v Maasai Mara University [2015] KEELRC 1134 (KLR)

Employment and Labour Relations Court
8 May 2015
1,775 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan university's summary dismissal of an employee without a hearing was ruled unfair, and the employee won reinstatement with full benefits.

What this practically means

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Executive summary

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Daniel K. Cheboi, added as claimant through an Amended Memorandum of Claim filed on 25 September 2013, sued Maasai Mara University for unlawful termination. The Court had on 11 November 2014 directed that the claims of the original three claimants be separated, and this judgment concerns Cheboi alone. The Respondent denied in its pleadings that the Claimant was its employee, but its Acting Registrar in charge of Administration testified that he was employed as an Accounts Assistant Grade 5; the Court found an employment relationship existed. Following allegations of failure to remit cafeteria revenue, the Claimant was suspended, dismissed in July 2012, successfully appealed and was reinstated in October 2012, but was then summarily dismissed on 6 November 2012 for insubordination after declining, on the advice of his union (UNTESU), to appear before the Audit Committee of Council on 1 November 2012. The Court held the Respondent had lawful cause to commence disciplinary action but failed to comply with the procedural fairness requirements of section 41 of the Employment Act, 2007 and its own Terms of Service, rendering the summary dismissal procedurally unfair and in breach of contract - a classic ex parte dismissal. The Court found it unnecessary to consider whether the reasons for dismissal were valid and fair under sections 43 and 45. Considering remedies, the Court ordered the Claimant's reinstatement with effect from 6 November 2012 without loss of any benefits, holding that compensation would amount to unjust enrichment. Prospective future earnings, damages for malicious termination and a certificate of service were held inappropriate. The Claimant was denied costs for late filing of submissions, and each party was ordered to bear its own costs. Judgment delivered in Nakuru on 8 May 2015 by Radido Stephen, Judge.

Key legal issues

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01

Whether the Claimant was an employee of the Respondent

Holding

Yes - the Respondent's own witness confirmed the Claimant was an employee as Accounts Assistant Grade 5, despite denial in pleadings

Reasoning

Although the Respondent denied employment in its Response, its Acting Registrar in charge of Administration, Samson Kirsokoi, testified that the Claimant was an employee of the Respondent as an Accounts Assistant Grade 5. On that unchallenged evidence the Court answered the first issue in the positive.

p. 1
02

Whether the summary dismissal was procedurally unfair

Holding

The dismissal was procedurally unfair and in breach of contract - the Respondent failed to comply with section 41 of the Employment Act, 2007 and its own Terms of Service before dismissing the Claimant for insubordination

Reasoning

The Respondent had lawful cause to commence disciplinary action after the Claimant declined to appear before the Audit Committee, but was bound to follow the procedural fairness requirements of section 41 of the Employment Act, 2007 and its contractual Terms of Service (warning, suspension and disciplinary hearing). The Court was not told who informed the Claimant of the contemplated charges or who heard him, and the Respondent did not suggest the required hearing was followed. The dismissal was therefore a classic ex parte dismissal.

p. 3
03

Whether reinstatement was an appropriate remedy

Holding

Reinstatement without loss of benefits from the date of dismissal was appropriate

Reasoning

The Court considered the practicability of reinstatement, the absence of loss of mutual trust and confidence, the common law bar on specific performance of a contract of service, and section 12(3)(vii) of the Employment and Labour Relations Court Act. The Respondent was a big institution and it was not suggested the Claimant had been replaced or that day-to-day interactions would be mutually destructive, so reinstatement was appropriate.

p. 3
04

Whether compensation for prospective future earnings is available

Holding

The remedy was not granted; the Court expressed doubt whether such an award is available at all for unfair termination under the Employment Act, 2007, and in any event it could not coexist with reinstatement

Reasoning

The Claimant relied on Beatrice Achieng Osir v Board of Trustees Teleposta Pension Scheme, but that case dealt with the Persons with Disabilities Act, 2003. The Court read it as making prospective earnings available only where reinstatement or re-engagement is not ordered, and noted Bank of Uganda v Tinkamanyire holding such compensation unattainable in law, but deferred the broader debate to a case with full submissions.

p. 4

Legal principles established

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  • Section 41(2) of the Employment Act, 2007 protects employees from summary dismissal without a hearing, however grave the offence
  • An employer has the right to summon an employee to offer explanations, and failure to attend may amount to misconduct attracting disciplinary action
  • Reinstatement and compensation for prospective future earnings cannot both be granted at the same time

Court orders

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  1. 1.The Claimant be reinstated with effect from 6 November 2012 without loss of any benefits
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007section 41(2)
  • Employment Act, 2007section 43
  • Employment Act, 2007section 45
  • Employment Act, 2007section 45(4)(b)
  • Employment Act, 2007section 49(1)(c)
  • Employment and Labour Relations Court Actsection 12(3)(vii)
  • Persons with Disabilities Act, 2003not specified
  • Respondent's Terms of Service for Non-Teaching Staffclauses 6.0 and 6.2 (as read with the recognition agreement)

Cases cited (2)

  • Beatrice Achieng Osir v Board of Trustees Teleposta Pension Scheme
    Nairobi Cause No. 665 of 2011
  • Bank of Uganda v Tinkamanyire
    (2009) 2 EA 66
Jurisdiction invoked
Jurisdiction of the Employment and Labour Relations Court over employment disputes, including reinstatement under section 12(3)(vii) of the Employment and Labour Relations Court Act and the Employment Act, 2007

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, "Daniel K. Cheboi v Maasai Mara University [2015] KEELRC 1134 (KLR)", Case Analysis (2015). Cause relating to Daniel K. Cheboi (initial Memorandum of Claim filed 8 August 2013 by William Morogo Mutwo, Amos Sasine Kitaika and Peter M. Okemwa; claim separated by direction of 11 November 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1134/eng@2015-05-08

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