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ELRCPartially AllowedCause No. 1 of 2019 (formerly Nakuru ELRC No. 132 of 2016; formerly Eldoret ELRC No. 228 of 2017)· [2019] KEELRC 262 (KLR)

Nathan Kipruto Kemboi v University of Eldoret [2019] KEELRC 262 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
21 November 2019
5,186 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled the University of Eldoret wrongly suspended an employee for 11 months but lawfully dismissed him, awarding only his withheld suspension salary.

What this practically means

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Executive summary

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The claimant, formerly an Assistant Accountant at the University of Eldoret, sued seeking unconditional reinstatement with salary arrears, council honoraria and PSSP payments, or in the alternative compensation for unfair termination, together with extensive consequential damages, notice pay, severance pay and costs. His case was that he was suspended in December 2014 over unaccounted imprests contrary to the 2012/2013 CBA, that the disciplinary process was defective because the respondent lacked jurisdiction over conduct arising during the Moi University/Chepkoilel University College era, and that he was denied documents and a fair hearing before summary dismissal on 25 January 2016. The respondent maintained that it was the lawful successor to its predecessors' staff, assets and liabilities, that the claimant failed to account for Ksh.3,823,036 in imprests, that the delay was caused by institutional turmoil, and that the claimant frustrated the disciplinary hearing by walking out with his advocate. The court framed three issues: whether termination was wrongful, unlawful or unfair; whether reinstatement should issue; and whether alternative remedies should issue. The court held the 11-month suspension breached the CBA and was wrongful, but found substantive grounds for the dismissal justified, as the claimant failed to account for the imprests and walked out of his hearing. Reinstatement was refused, as were consequential losses, notice pay, severance pay and leave dues. Judgment was entered for the claimant only for Ksh.777,682.00 withheld during suspension, payable subject to section 49(2) of the Employment Act, with 25% of costs awarded to the claimant.

Key legal issues

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01

Whether the suspension of the claimant was wrongful under the CBA

Holding

The suspension for 11 months without resolution or communication violated clause 5.2 of the CBA and was wrongful

Reasoning

The CBA permitted suspension on half pay for up to 21 days, extendable by a further 21 days with communication, failing which the employee was to be automatically reinstated after 30 days. The claimant was suspended in December 2014 and only invited to a hearing in November 2015. The respondent's defence of institutional turmoil was not proved to the court. The employer's prerogative cannot be abused to the employee's detriment.

p. 5
02

Whether the termination of employment was substantively and procedurally justified

Holding

Save for the suspension lapse, the summary dismissal was justified; the claimant failed to account for imprests and frustrated his own disciplinary hearing

Reasoning

The claimant did not deny receiving the imprests and accounted only for part of the amount. He was given a show-cause notice and hearings with his advocate and union representative. When his advocate was not allowed to raise objections akin to criminal proceedings, the claimant became agitated and walked out before the hearing concluded. Disciplinary proceedings are not court trials and the rigours of criminal procedure do not apply.

p. 6
03

Whether the respondent had jurisdiction over misconduct arising during the Moi University/Chepkoilel University College era

Holding

The respondent, as successor to the assets, liabilities and staff of its predecessors, could discipline the claimant for conduct predating its charter

Reasoning

The claimant's employment did not lapse through the transition from Moi University to Chepkoilel University College to the University of Eldoret; it transitioned with full benefits and rights. The monies held by the claimant on behalf of Chepkoilel College became part of the assets transmitted to the respondent, and the due liabilities were carried over. There was therefore no institutional gap.

p. 4
04

Whether reinstatement or alternative remedies should issue

Holding

Reinstatement was unavailable; only the salary withheld during suspension (Ksh.777,682) was found due

Reasoning

Section 12(3) of the Employment and Labour Relations Court Act, 2011 requires the court to account for the time since termination (January 2016), and the claimant had betrayed his fiduciary responsibilities as Assistant Accountant. Consequential losses, notice pay, severance pay and leave dues were all refused for want of justification or evidence.

p. 7

Legal principles established

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  • An employer has the prerogative to suspend an employee as an administrative action to allow investigations, but must not abuse that prerogative to the detriment of the employee; an 11-month suspension contrary to the CBA was wrongful
  • Where parties are bound by a CBA providing for automatic reinstatement upon failure to conclude disciplinary process within stipulated time, going contrary to it renders the treatment of the employee wrongful
  • Internal disciplinary proceedings are not criminal trials; the strict rigours and evidentiary standards of a court trial do not apply, and an employee who walks out of a properly conducted hearing gives up his right to secure his employment

Court orders

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  1. 1.Judgment entered for the claimant for payment of Ksh.777,682.00 monies withheld during the suspension period, payable subject to the provisions of section 49(2) of the Employment Act, 2007
  2. 2.Claimant awarded 25% of his costs

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 42(1)
  • Employment Actsection 45
  • Employment Actsection 40
  • Employment Actsection 49(2)
  • Employment and Labour Relations Court Actsection 12(3)
  • Public Finance Management Actsections 69 to 71
  • Leadership and Integrity Act
  • Public Officer Ethics Act
  • Universities Act
  • University of Eldoret Charterclause 32; section 3(4)
  • Legal Notice No. 125 of 13 August 2010
  • Collective Bargaining Agreement (2012/2013) between the respondent and Kenya Universities Staff Unionclauses 5, 5.2(a), 5.2(f), 5.4

Cases cited (7)

  • Elizabeth Cherono Kurgat versus Kenya Literature Bureau
    [2014] eKLR
  • Ezra Chiloba versus Wafula Wanyonyi Chebukati & 7 others
    [2018] eKLR
  • Narry Philemons Onaya-Odeck versus Technical University of Kenya (Formerly, the Kenya Polytechnic University College)
    [2017] eKLR
  • Evans Rurinja Githuo versus Sunmatt Limited
    [2017] eKLR
  • Thomas B. Miningwo versus Egerton University
  • George Musamali versus G4S Security Services Kenya Limited
    [2016] eKLR
  • Sophia Wambui Muthoni versus Muramati Sacco Society Limited
    Cause No.162 of 2012
Jurisdiction invoked
Article 162(2) of the Constitution establishing the Employment and Labour Relations Court; Employment and Labour Relations Court Act, 2011 (including section 12(3) and section 49(2))

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nathan Kipruto Kemboi v University of Eldoret [2019] KEELRC 262 (KLR)", Case Analysis (2019). Cause No. 1 of 2019 (formerly Nakuru ELRC No. 132 of 2016; formerly Eldoret ELRC No. 228 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/262/eng@2019-11-21

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