Thomas Barkasiam Miningwo v Egerton University [2015] KEELRC 1416 (KLR)
The bottom line
#A Kenyan court upheld a university employee's dismissal for losing money, but ruled his unpaid suspension was unlawful and awarded him salary, leave and arrears.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness under section 41
The Respondent complied with section 41; the Claimant was informed of the allegations, given a chance to respond, and afforded disciplinary hearings with union representation
The suspension letter of 11 May 2012 set out the allegations and required a response within 7 days. Invitation letters preceded hearings on 23 October and 13 November 2012, at which the Claimant made representations, with union representatives present. Minutes confirmed the hearings. A change in the Disciplinary Committee's composition caused no demonstrated prejudice, only three or four of twelve members being absent.
Substantive fairness under sections 43 and 45
The Respondent proved the reasons for dismissal (gross misconduct leading to loss of Kshs 249,699/-) and they were valid and fair
The employer bears the burden of proving reasons under section 43 and their validity under section 45. The Claimant admitted receipt of the money and its loss; he was negligent in handling money entrusted to him, handing it over without written acknowledgment. As a senior manager, responsibility rested with him. The Respondent's witness confirmed proper systems and practice of signing for money.
Effect of acquittal in criminal case
Acquittal cannot found a claim for unfair termination; the standard and purposes of criminal trials differ from disciplinary proceedings
The standard of proof in criminal cases is higher than in employment disputes, and criminal trials serve different purposes from workplace disciplinary proceedings. An acquittal does not automatically make a dismissal unfair, and a criminal prosecution does not require the suspension of a disciplinary hearing. The Claimant's acquittal of theft by servant therefore could not assist his case.
Suspension without pay
The Respondent had no contractual or statutory authority to suspend without pay; basic pay for the suspension period awarded
At common law, suspension without pay breaches the contract absent express contractual or statutory authority. The Respondent produced no such authority, and no collective bargaining agreement was produced to justify it. The Court awarded pay for the suspension period based on basic salary, the Claimant having received house and medical allowances during suspension.
Legal principles established
#- Section 41 of the Employment Act, 2007 makes a hearing before termination mandatory where the reason is misconduct, poor performance or incapacity
- An employer cannot terminate without valid and fair reasons even where the contract allows termination on notice
- Acquittal in a criminal trial does not, without more, render a dismissal unfair; criminal and disciplinary proceedings are governed by different legal principles
- Suspension without pay is unlawful absent express contractual or statutory authority
Court orders
#- 1.The claim based on unfair termination/wrongful dismissal is dismissed
- 2.The Respondent to compute and pay the Claimant 245 days leave in cash
- 3.The Respondent to compute and pay the Claimant salary arrears arising out of Collective Bargaining Agreement (admitted sum of Kshs 18,147/-)
- 4.The Respondent to compute and pay the Claimant unpaid salary during suspension (basic pay)
- 5.Costs awarded to the Claimant at 50% of the applicable scale
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination claim)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (6)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Bett v East Africa Portland Cement Company (Cause 1562 of 2014) [2023] KEELRC 1358 (KLR)[2023] KEELRC 1358 (KLR)2 Jun 2023
- Michael Muriuki Ngari & 9 others v Equity Bank of (Kenya) Limited [2020] KEELRC 1001 (KLR)[2020] KEELRC 1001 (KLR)21 May 2020
- James Gitau Waweru & 3 others v China Railway No.10 Engineering Group Company [2020] KEELRC 1080 (KLR)[2020] KEELRC 1080 (KLR)27 Apr 2020applied
- Betty Osiako v Timsales Limited [2020] KEELRC 1401 (KLR)[2020] KEELRC 1401 (KLR)27 Feb 2020applied
- Peter Maina Kinyanjui v Woolmart Supermarket Limited [2019] KEELRC 13 (KLR)[2019] KEELRC 13 (KLR)28 Nov 2019applied
- Nathan Kipruto Kemboi v University of Eldoret [2019] KEELRC 262 (KLR)[2019] KEELRC 262 (KLR)21 Nov 2019applied
Cite this brief
#Cite this brief
Caselaw, "Thomas Barkasiam Miningwo v Egerton University [2015] KEELRC 1416 (KLR)", Case Analysis (2015). Memorandum of Claim filed 17 March 2014 (Cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1416/eng@2015-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.