Cathrine Njeri Wainaina v Kiriri Women’s University of Science & Technology [2018] KEELRC 762 (KLR)
The bottom line
#A Kenyan court awarded a lecturer Kshs 2.5 million because her employer fired her without notice, a hearing, or a genuine reason.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was unfair
The termination was unfair both for want of valid procedure under section 41 and for want of a genuine reason under section 43 of the Employment Act, 2007
The respondent pleaded failure to take up reviewed duties but RW1 confirmed the claimant performed her duties during the December 2017 examinations; at hearing the respondent shifted to alleged failure to sign the attendance register, which was never pleaded. No notice or hearing was given as required by section 41. The inconsistency between pleadings and evidence showed the reason for termination was not genuine under section 43.
Whether the 'soft landing' argument by the respondent justified the termination
No - a soft landing does not relieve the employer of the obligation to give fair reason and fair procedure, and does not cleanse an unfair termination
Relying on Malachi Ochieng Pire v Rift Valley Agencies, the court held that where an employer waives the disciplinary process, it must enter into an agreement such as a valid discharge from future liability; and employers hold an integrity obligation to convey truthfully about the service record of employees. Raising allegations of misconduct never raised before termination tilts the benefit of doubt in favour of the employee.
Remedies for the unfair and unlawful termination
Maximum compensation of 12 months' salary awarded under section 49, plus notice pay, December 2017 salary, 8 days leave pay, service pay and a certificate of service under section 51
The claimant did not contribute to the termination, desired to continue in employment, and cooperated in the clearance process. Aggravating factors were the respondent's failure to issue the certificate of service or honour the termination letter's terms. Her record of service was clean and her performance was not wanting, justifying maximum compensation under section 49.
Legal principles established
#- Termination on account of alleged misconduct requires notice and a hearing under section 41 of the Employment Act, 2007
- A termination must be supported by a genuine reason as envisaged in section 43 of the Employment Act; inconsistent pleadings and evidence render the stated reason invalid
- A 'soft landing' by the employer does not cleanse an otherwise unfair termination
Court orders
#- 1.Declaration that the respondent's action was not only unfair but unlawful and wrongful
- 2.Respondent to pay the claimant Kshs. 2,503,423.10 by 15.12.2018, failing which interest to run at Court rates from the date of judgment till full payment
- 3.Respondent to deliver to the claimant a certificate of service by 15.11.2018
- 4.Costs of the suit fixed at Kshs. 50,000.00
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cathrine Njeri Wainaina v Kiriri Women’s University of Science & Technology [2018] KEELRC 762 (KLR)", Case Analysis (2018). Cause No 150 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/762/eng@2018-11-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.