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ELRCPartially AllowedCause No 264 of 2018· [2019] KEELRC 308 (KLR)

John Wekesa Wanjala v Murang’a University of Technology [2019] KEELRC 308 (KLR)

Employment and Labour Relations Court
18 November 2019
NMNzioki wa Makau
17,733 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that even when an employee's gross misconduct justifies dismissal, firing them without a hearing first still entitles them to compensation.

What this practically means

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Executive summary

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Dr. John Wekesa Wanjala, a lecturer and Chairman of the Department of Human Resource Management at Murang'a University of Technology, was summarily dismissed on 20th June 2018 over examination irregularities concerning unit HEH 2409, in which a student who had not sat the exam was entered as having passed. The Respondent's evidence, including ERP system logs and testimony from ten witnesses, showed an extra script, an irregular second mark sheet bearing the initials 'LK' countersigned by the Claimant, and system entries and deletions of marks traced to his user account. The Claimant maintained he merely entered missing marks as Chief Examination Officer and that due disciplinary procedure, including a hearing before dismissal by the full Council, was not followed. He sought reinstatement, a declaration that the dismissal was null and void, damages, pension remittance, part-time teaching pay, leave pay, loan arrears and payment up to retirement age of 72. The court found that the Claimant did alter marks in the ERP system, constituting gross misconduct sufficient to justify dismissal, but that he ought to have been heard before dismissal rather than after; the post-dismissal appeal hearings came 'after the fact'. Reinstatement was refused given the gravity of the misconduct. Applying Section 49(4)(b) of the Employment Act on employee contribution to termination, the court awarded compensation of one month's salary only (Kshs. 216,137/-) and disallowed all other claims as unproved. The judgment was delivered at Nyeri on 18th November 2019 by Nzioki wa Makau, J.

Key legal issues

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01

Whether the summary dismissal without prior hearing was lawful

Holding

The dismissal was substantively justified (gross misconduct) but procedurally flawed because the Claimant was dismissed without a prior hearing; post-dismissal appeal hearings did not cure this

Reasoning

The court found evidence that the Claimant altered marks in the ERP system, sufficient to justify dismissal under the Employment Act. However, the dismissal was summary without a hearing; the hearings conducted came after dismissal and were 'after the fact'. The proper course would have been suspension, investigation, then a hearing before dismissal. Procedural unfairness entitled him to compensation but not reinstatement.

p. 11
02

Quantum of compensation in light of employee contribution

Holding

Compensation limited to one month's salary because the Claimant's own egregious conduct contributed to the termination

Reasoning

Invoking Section 49(4)(b) of the Employment Act, the court held that the employee's contribution to the termination must be considered. But for the failure of due process, the Respondent had every right to terminate for the egregious examination-related conduct. The court therefore awarded only one month's salary of Kshs. 216,137/-.

p. 11

Legal principles established

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  • An employer with valid grounds for dismissal must nevertheless follow due process; dismissal without a hearing prior to the dismissal is procedurally unfair and attracts compensation
  • Under Section 49(4)(b) of the Employment Act, the extent to which the employee caused or contributed to the termination must be considered when awarding compensation

Court orders

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  1. 1.Claim allowed only to the extent of compensation equivalent to one month's salary of Kshs. 216,137/-
  2. 2.Reinstatement refused
  3. 3.All other claims (part-time pay, pension remittance, leave pay, loan arrears, pay up to retirement age, damages) disallowed

Authorities

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Legislation

  • Employment ActSections 41, 44, 45, 49(4)(a) and (b), 5(3), 19
  • Constitution of KenyaBill of rights (referenced generally by the Claimant)
  • Employment ActPart IV (Protection of Wages)

Cases cited (7)

  • Naftaly Rugara Muiga v Jomo Kenyatta University of Agriculture and Technology (JKUAT)
    [2015] eKLR
  • Josphat K.Z Mwatellah v Technical University of Mombasa Council & Others
    [2017] eKLR
  • Kenneth Nyaga Murage v Augustin Kiguta & 2 Others
    [2015] eKLR
  • Suraya Holdings Limited v ICICI Bank Limited
    HCCC 85 of 2015
  • Bamburi Cement Limited v William Kilonzi
    [2015] eKLR
  • Co-operative Bank of Limited v Banking Insurance & Finance Union (K)
    [2017] eKLR
  • Elijah Oyoo Okoth v Vice Chancellor Karatina University & Another
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (implied; the suit is an employment claim under the Employment Act, 2007)

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, "John Wekesa Wanjala v Murang’a University of Technology [2019] KEELRC 308 (KLR)", Case Analysis (2019). Cause No 264 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/308/eng@2019-11-18

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