Nathan Kipruto Kemboi v University of Eldoret [2019] KEELRC 262 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the suspension of the claimant was wrongful under the CBA
The suspension for 11 months without resolution or communication violated clause 5.2 of the CBA and was wrongful
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.
Whether the termination of employment was substantively and procedurally justified
Save for the suspension lapse, the summary dismissal was justified; the claimant failed to account for imprests and frustrated his own disciplinary hearing
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.
Whether the respondent had jurisdiction over misconduct arising during the Moi University/Chepkoilel University College era
The respondent, as successor to the assets, liabilities and staff of its predecessors, could discipline the claimant for conduct predating its charter
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.
Whether reinstatement or alternative remedies should issue
Reinstatement was unavailable; only the salary withheld during suspension (Ksh.777,682) was found due
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.
Legal principles established
#- 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
#- 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.Claimant awarded 25% of his costs
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Social Service League MP Shah Hospital v Judith Apudo [2021] KECA 963 (KLR)[2021] KECA 963 (KLR)19 Feb 2021
- Patrick Onchoke Nyabuto v Rainforest Farmlands (K) Limited [2020] KEELRC 1655 (KLR)[2020] KEELRC 1655 (KLR)6 Feb 2020followed
Cite this brief
#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.