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Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 665 of 2016· [2018] KEELRC 865 (KLR)

Tyson Sangura Wanyama v Pwani Univesrity [2018] KEELRC 865 (KLR)

Employment and Labour Relations Court
26 October 2018
3,259 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, employed by the Respondent University in 2009 as a Registry Supervisor and later redeployed as a Library Assistant, was summoned to a disciplinary hearing on 19th February 2016 over allegations including giving false information, making false accusations, and borrowing money from colleagues and students without repayment. His contract was terminated on 23rd February 2016 and his appeal was dismissed. He claimed unfair termination, underpayment of salary, service pay, compensation, costs and interest, alleging victimization for trade union activities and personal differences with the Deputy Vice-Chancellor. The court framed three issues: validity and fairness of termination; entitlement to promotion and salary increment; and the reliefs sought. It held the procedure was fair, as the Claimant was notified in writing, heard before the Staff Disciplinary Committee and the Appeals Committee with his Trade Union Representatives present. However, termination was substantively unfair for want of valid reason: the allegations were inconsistent and unsupported, no students, parents or debtors testified, written complaints were not exhibited, and the witness's evidence contradicted the termination letter. The debts were private civil arrangements, not gross misconduct. Claims of union victimization and bad blood failed for lack of evidence. The claims for underpayment and service pay were rejected - no material established entitlement to promotion, and the Claimant was a member of the University Pension Scheme. The court awarded compensation equivalent to 7 1/2 months' gross salary (Kshs. 326,452), costs to the Claimant, and interest at 14% per annum from the date of judgment until payment in full.

Key legal issues

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01

Procedural fairness of the disciplinary process

Holding

Procedure was fair and met the minimum standards of Sections 41 and 45 of the Employment Act

Reasoning

The Claimant was informed in writing of the allegations, notified of the hearing, heard in the presence of his Trade Union Representatives, and heard again on appeal before the Appeals Committee with his representatives. The law did not require additional accompaniment by an employee of his choice.

p. 4
02

Substantive fairness - valid reason for termination

Holding

Termination was unfair for want of valid reason

Reasoning

The reasons in the termination letter were inconsistent and unsupported: no student, parent, debtor or complainant gave evidence, no written complaints were exhibited, and the witness's evidence on misappropriation of parents' money contradicted the termination letter. The debts were civil debts; no evidence showed the University was ridiculed.

p. 4
03

Alleged victimization for trade union activities

Holding

No evidence of victimization; the Claimant was never elected Chapter Chairman and there was no link between dismissal and union activities

Reasoning

The court found no evidence of bad blood with the Deputy Vice-Chancellor, noted the Claimant's candidacy for KUSU Chapter Chairman failed, and saw no reason why a failed union candidate would be singled out for victimization.

p. 4
04

Entitlement to promotion and salary increment

Holding

Not established; the claim for underpayment was rejected

Reasoning

The Claimant did not exhibit the salary structure document or call his Head of Department; the promotion procedure required application, committee assessment and Council approval, and he applied while still an undergraduate candidate.

p. 3
05

Service pay

Holding

Declined as the Claimant was a member of the University Pension Scheme

Reasoning

Section 35 of the Employment Act does not entitle a member of an employer's pension scheme to service pay; the Claimant had received about Kshs. 257,000 in pension.

p. 3

Legal principles established

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  • Private debts between staff members are civil debts and do not constitute gross misconduct justifying termination
  • An employee accompanied by trade union representatives at disciplinary and appeal hearings receives the procedural fairness required by Section 41 of the Employment Act
  • An employee claiming promotion and underpayment must exhibit material obligating the employer to promote him
  • An employee who has benefited from a pension scheme is not eligible for service pay

Court orders

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  1. 1.Declaration that termination was unfair for want of valid reason
  2. 2.Respondent to pay the Claimant equivalent of 7 1/2 months' gross monthly salary at Kshs. 326,452 as compensation for unfair termination
  3. 3.Costs to the Claimant
  4. 4.Interest at 14% per annum from the date of Judgment until payment in full

Authorities

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Legislation

  • Employment ActSections 35, 41, 43, 45
  • Public Officer’s Ethics Act2008
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (Sections 35, 41, 43 and 45) over a claim for unfair termination

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, "Tyson Sangura Wanyama v Pwani Univesrity [2018] KEELRC 865 (KLR)", Case Analysis (2018). Cause No 665 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/865/eng@2018-10-26

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