Amos Sasine Kitaika v Maasai Mara University [2015] KEELRC 1137 (KLR)

The Respondent denied employment in its Response, but its Acting Registrar in charge of Administration, Samson Kirsokoi, testified in court that the Claimant was its employee as an Accounts Clerk Grade 5. The court accepted that testimony over the pleading, answering the issue in the positive.

The Respondent had lawful cause to discipline the Claimant for failing to appear before the Audit Committee, but was bound by section 41 of the Employment Act, 2007 to inform him of the charges, hear him and consider his representations. The court was not told who informed the Claimant of the contemplated charges or who heard him, and the Respondent did not suggest it followed the hearing procedures in its own Terms of Service. It therefore failed to demonstrate compliance with both statutory and contractual procedural fairness.

The court weighed the practicability of reinstatement, the common law principle against specific performance of a contract of service and section 12(3)(vii) of the Employment and Labour Relations Court Act. The Respondent is a large institution, and there was no suggestion of replacement of the Claimant, loss of mutual trust and confidence, or mutually destructive day-to-day interactions. Reinstatement was therefore ordered with effect from the date of dismissal.

The Claimant relied on Beatrice Achieng Osir v Board of Trustees Teleposta Pension Scheme, but that case concerned a specific statutory framework (the Persons with Disabilities Act, 2003). Prospective earnings are available only where reinstatement or re-engagement is not ordered, and the two cannot coexist. Citing Bank of Uganda v Tinkamanyire, the court noted the Ugandan Supreme Court's view that compensation to retirement is unattainable in law, but deferred full examination of the Kenyan position to a case with detailed submissions.