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ELRCPartially AllowedMemorandum of Claim filed on 29.6.2016· [2019] KEELRC 1540 (KLR)

Mathews Oduol Otieno & another v Jaramogi Oginga Odinga University of Science And Technology & another [2019] KEELRC 1540 (KLR)

Employment and Labour Relations Court
30 May 2019
3,030 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld a university worker's dismissal but still ordered the employer to pay his withheld dues, pension benefits and half the costs.

What this practically means

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Executive summary

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The 1st Claimant, a Games Tutor at Jaramogi Oginga Odinga University of Science and Technology and Branch Secretary of KUSU, was summarily dismissed on 23rd June 2016 following a disciplinary process prompted by a complaint from the Kenya University Sports Association. The complaint arose after the university's women's handball team protested at inter-university games in Eldoret on 19th–20th March 2016, held up play for over two hours, and caused the university's suspension from KUSA competitions for one year. The Claimant alleged the dismissal was orchestrated by the 2nd Respondent, the Vice Chancellor, as retaliation for an assault complaint he had lodged against him with the police, and that the Vice Chancellor chaired the disciplinary hearing in breach of procedure. The union sought reinstatement, damages, breach of CBA declarations and terminal dues. The court framed two issues: whether the dismissal was for a valid reason and followed a fair procedure, and whether the Claimant was entitled to reinstatement or terminal benefits. Applying Sections 41, 43, 45 and 47(5) of the Employment Act and Sections 107–108 of the Evidence Act, the court allocated the burden of proof appropriately and found the Respondent had rebutted the allegations. It held the charges arose from an independent organization, that Prof. Bosire (not the Vice Chancellor) chaired the hearing, and that the Claimant and union representatives walked out of the hearing, forfeiting the chance to be heard. The dismissal was declared lawful and fair; reinstatement and damages were refused. However, the court awarded withheld dues of Kshs 167,581 with interest, directed facilitation of pension benefits of Kshs 804,951, and ordered a certificate of service within 30 days, with the Respondent to pay half the costs.

Key legal issues

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01

Whether the summary dismissal was for a valid reason and effected through a fair procedure

Holding

The dismissal was for a valid reason (gross misconduct arising from the KUSA complaint) and followed a fair procedure; the claimant failed to respond to charges or participate in the hearing.

Reasoning

The complaint originated from an independent organization (KUSA) regarding the Eldoret games incident, not from any vendetta by the Vice Chancellor. Charges were laid, the claimant was invited to respond in writing and to attend a disciplinary hearing, but he declined to respond in writing and walked out of the hearing with union representatives over objections to the committee's composition. RW1 (Prof. Bosire), not the Vice Chancellor, chaired the hearing, as corroborated by minutes. The court held the burden under Sections 43, 45 and 47(5) of the Employment Act was discharged by the Respondent.

p. 4
02

Whether the claimant was victimized for refusing to withdraw an assault complaint against the 2nd Respondent

Holding

No; the charges arose from the KUSA complaint about events in Eldoret, independent of the assault report.

Reasoning

The court acknowledged bad blood between the claimant and the Vice Chancellor following the assault report to police, but noted the assault case was closed by police before the dismissal, and the charges facing the claimant stemmed solely from the Kenya University Sports Association complaint about the women's handball team protest in Eldoret. The bad relationship was not an issue in the charge sheet, and the nine-member committee of high academic ranking was capable of independent consideration.

p. 4
03

Entitlement to withheld dues, pension benefits and certificate of service

Holding

The court awarded withheld dues and directed payment/facilitation of pension contributions and issuance of a certificate of service.

Reasoning

The summary dismissal letter directed the claimant to complete clearance forms, upon which the withheld half salary and other benefits would be paid. The court found the sums of Kshs 35,888.50 and Kshs 131,692.50 were duly owed and awarded them with interest, and directed the Respondent to facilitate release of pension contributions of Kshs 804,951 and to issue a certificate of service within 30 days, even though the dismissal itself was upheld.

p. 5

Legal principles established

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  • An employee alleging wrongful and unfair summary dismissal bears the onus of establishing it, while the employer bears the evidential burden of rebuttal to show a valid reason and compliance with fair procedure.
  • An employee who, with union representatives, walks out of a disciplinary hearing forfeits the opportunity to clear himself, and the committee may proceed in his absence.

Court orders

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  1. 1.Kshs 167,581 being dues withheld by the 1st Respondent during the period prior to the suspension and after suspension to the date of dismissal
  2. 2.1st Respondent to facilitate payment of pension benefits contributed by the 1st Claimant in the sum of Kshs 804,951
  3. 3.The award of Kshs 167,581 to be paid with interest at court rates from date of filing suit till payment in full
  4. 4.The 1st Respondent to pay half the costs of the suit
  5. 5.The 1st Respondent to provide certificate of service in 30 days
  6. 6.Declaration that the summary dismissal of the 1st Claimant was lawful and fair

Authorities

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Legislation

  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 43(1) and (2)
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 41
  • Evidence Act, Cap 80 Laws of KenyaSections 107 and 108
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 43, 45, 47(5))

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, "Mathews Oduol Otieno & another v Jaramogi Oginga Odinga University of Science And Technology & another [2019] KEELRC 1540 (KLR)", Case Analysis (2019). Memorandum of Claim filed on 29.6.2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1540/eng@2019-05-30

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