Lucy Njeri Mugwere v Kenneth Majau Mugambi & another [2019] KEELRC 1477 (KLR)
The bottom line
#A Kenyan court ruled a university unfairly fired a lecturer, awarding three months' salary because the employer proved no valid reason or fair process.
What this practically means
#Executive summary
#Key legal issues
#Validity of reasons and fairness of procedure for termination
The termination was unfair under section 45 of the Employment Act because the employer failed to prove valid reasons and a fair procedure
The employer summoned the claimant to a disciplinary hearing but produced no minutes or evidence of what transpired, so the court could not establish that the claimant was confronted with details of the allegations or given a chance to respond. The memo making broad allegations lacked detail. In a claim for unfair termination the employer bears the burden of proving both reason and procedure; neither was shown, hence the termination was unfair under section 45.
Employer's duty to investigate sexual harassment complaints
The respondent failed to investigate the claimant's complaints of sexual harassment and bullying and had no sexual harassment policy
Section 6 of the Employment Act requires an employer with twenty or more employees to issue a policy statement on sexual harassment. The respondent produced no such policy and no evidence of investigation into the claimant's complaints. Its only response was that the complaints were raised after the claimant learned of the disciplinary process. The failure compounded the unfairness of the termination.
Natural justice in disciplinary proceedings
The disciplinary process violated the rules of natural justice; the claimant's accuser sat on the disciplinary committee
The claimant's alleged harasser, the 1st respondent, was a member of the disciplinary committee that heard allegations against her. The summons made broad allegations without details, and no minutes of the hearing were produced. In the absence of minutes the court could not tell whether the claimant was given details of the allegations and an opportunity to respond, so procedural fairness was not established.
Legal principles established
#- In a claim for unfair termination, the burden lies on the employer to prove both the reasons for termination and that a fair procedure was followed
- Termination requires both a valid and justifiable reason and a fair procedure including notice of allegations and opportunity to respond
- An employer employing twenty or more employees must issue a policy statement on sexual harassment under section 6 of the Employment Act
Court orders
#- 1.Award of Kshs. 291,000/= being three months' salary as compensation for unfair termination of service
- 2.The award is in addition to the terminal benefits offered in the termination letter dated 12th July, 2010
- 3.The award to attract interest at court rates from date of Judgment until payment in full but subject to taxes and statutory deductions
- 4.Claimant to have costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair termination claim under the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lucy Njeri Mugwere v Kenneth Majau Mugambi & another [2019] KEELRC 1477 (KLR)", Case Analysis (2019). Cause Number 1083 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1477/eng@2019-05-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.