Samuel Daniel Wafula v Kenyatta University [2016] KEELRC 1238 (KLR)
The bottom line
#Kenya's Employment Court dismissed a security officer's unfair dismissal case, but confirmed that a pending internal appeal extends the three-year deadline for suing.
What this practically means
#Executive summary
#Key legal issues
#Limitation - whether the claim filed on 6th August 2014 was time-barred under section 90 of the Employment Act
Not time-barred; time ran from the rejection of the internal appeal on 5th September 2012, so the claim filed on 6th August 2014 was within 3 years
The court held that section 90 must be read in the context of the whole Act. Because the employer's internal policy allowed an appeal against dismissal, the appeal process is a vital part of the dispute-resolution chain. While the appeal was pending, the matter was not closed; the limitation period under section 90 only started to run upon the appellate verdict confirming the dismissal on 5th September 2012.
Whether the summary dismissal was substantively justified and procedurally fair
Yes - the Claimant's absence from his duty station, failure to communicate and concealment in the chapel during the unrest of 29th March 2009 amounted to gross misconduct under section 44, and the hearing and appeal satisfied sections 41 and 45
The Claimant, the Chief Security Officer, admitted being absent from his duty station throughout the night, uncontactable by radio or phone and hiding in the chapel. The court found this a serious lapse of duty justifying summary dismissal. Procedurally, he received a show cause notice, was heard by the disciplinary committee, and his appeal was heard and determined, satisfying the requirements of section 41(2) and section 45(5).
Whether the parliamentary committee's recommendation that staff be reinstated bound the Respondent
No - third-party findings in an employment relationship are only persuasive, not obligatory
The court reasoned that the employment relationship is governed by the contract of employment, the Employment Act and, for unionised employees, the Labour Relations Act. A parliamentary committee is a third party to that relationship and its recommendation to reinstate carries no binding force on the employer's disciplinary process.
Whether the compulsory leave and direction to take 242 rest days were unlawful
No - taking earned leave is a statutory requirement and not a punishment; the accumulation of 242 rest days was unhealthy and the direction to take them was lawful
Relying on Rajab Barasa & Others v Kenya Meat Commission, the court held that rest cannot be postponed indefinitely and there is no such thing as 'forced leave' where leave has been earned. The accumulation of 242 rest days contrary to section 27(2) of the Employment Act made the direction to exhaust them proper rather than punitive.
Whether the Claimant proved malice and consequential damages
No - where the dismissal met the threshold of fairness, malice cannot find basis; post-dismissal misfortunes cannot be attributed to the Respondent
The court found the malice allegations baseless given the lawful and fair dismissal. On damages, it noted that section 51 only obliges an employer to issue a certificate of service, not a recommendation, and the Claimant's inability to secure employment abroad or locally, his loan blacklisting and family hardships were not the Respondent's fault.
Whether witnesses were required at the disciplinary hearing despite the Claimant's admissions
No - witnesses were unnecessary to confirm admissions the Claimant himself made before the disciplinary committee, in evidence and in cross-examination
Distinguishing Mwendwa Maluli v Kenya Power & Lighting Co. Ltd, where the employee was given no hearing at all, the court held that where an employee admits the core facts (his absence from the duty station), the employer need not call witnesses to prove what is admitted. The hearing and appeal processes satisfied procedural fairness.
Legal principles established
#- Where an employee lodges an internal appeal challenging dismissal, time under section 90 of the Employment Act begins to run upon the determination of that appeal, not upon the date of dismissal
- An employer intending summary dismissal under section 44 of the Employment Act must first comply with section 41(2) by notifying the employee and hearing representations
- Third-party recommendations (such as a parliamentary committee's direction to reinstate) are only persuasive and not obligatory on parties to an employment relationship
- A former employer is only bound to issue a certificate of service, not a testimonial, reference or certificate relating to character or performance
- Directing an employee to take earned leave and accumulated rest days is lawful and is not punishment
Court orders
#- 1.The claim is dismissed in its entirety
- 2.No remedies are due to the Claimant (no reinstatement, compensation, notice pay, general damages, interest or certificate of service were awarded)
- 3.Each party shall bear their own costs
- Jurisdiction invoked
- Jurisdiction under the Employment Act (Industrial Court/ELRC jurisdiction over employment and labour disputes); no constitutional or appellate provision invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Daniel Wafula v Kenyatta University [2016] KEELRC 1238 (KLR)", Case Analysis (2016). Cause (Memorandum of Claim) filed 6th August 2014 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1238/eng@2016-03-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.