Peter Wangai v Egerton University [2019] KEELRC 1906 (KLR)
The bottom line
#Kenya's Employment Court ordered Egerton University to reinstate a dismissed lecturer, ruling the university had no solid evidence for the misconduct charges.
What this practically means
#Executive summary
#Key legal issues
#Whether the grounds for dismissal were valid and fair
The court found no valid or fair substantive grounds: the defences to insubordination and neglect of duty were reasonable, and the sexual inappropriateness allegations were bare, unsupported by any evidence or investigation
The court weighed each charge against the claimant's defence. Failure to attend meetings because of lecturing duties was reasonable; protesting Dr Obure's appointment was protected expression; withholding marking schemes to prevent malpractice was not negligence; and the sexual misconduct allegations were left 'bare and empty' with no witness statements or investigation produced. The Council's finding that the claimant admitted all charges was erroneous as he gave a defence to each.
Whether the disciplinary procedure was fair
The procedure was unfair: the initial meeting was held at a different time than the notice without the claimant; no union representative attended as required by the CBA; the drafter of the charges and Dr Obure were present at the hearing; and no witnesses or documents supported the charges
The notice for 22nd September 2011 stated 8.30am but the meeting was held at 2pm in the claimant's absence, with extensive adverse findings made. The gross misconduct findings were at variance with the defences given, and the allegations of sexual impropriety lacked any investigation or evidence. A sham process cannot sanitise an unfair termination.
Whether the claimant was a vexatious litigant
The claimant was not a vexatious litigant; his suits were protected under section 46(h) of the Employment Act and each was appropriately addressed by the courts
The claimant filed several suits to assert his rights while facing disciplinary proceedings. Section 46(h) protects an employee's initiation of legal proceedings against his employer unless the complaint is irresponsible and without foundation. Each suit was heard on its merits by competent courts and the respondent defended each case.
Whether reinstatement was the appropriate remedy
Reinstatement was granted as the primary remedy, with back wages, increments and benefits under the applicable CBA; there was no evidence the position had been filled
The court distinguished the redundancy authorities where reinstatement was reversed, holding that section 49(3) and (4) factors are not competing rights. As the claimant's primary wish, with no evidence the Senior Lecturer position had been filled and given his continued diligent service, reinstatement was appropriate and monetary compensation would not adequately redress the unfairness.
Legal principles established
#- Under section 47(5) of the Employment Act the burden of proving unfair termination rests on the employee while the burden of justifying the grounds rests on the employer; it is effectively a shared burden
- A fair hearing process cannot cure the absence of valid and fair substantive reasons for termination
- Reinstatement is a lawful primary remedy and where it is the employee's primary wish and appropriate on the evidence, the court should not hesitate to grant it
- An employee's initiation of legal proceedings against his employer does not constitute a fair reason for dismissal, save where the complaint is irresponsible and without foundation
Court orders
#- 1.A declaration that the termination of employment was unfair
- 2.The Claimant reinstated back to his position as Senior Lecturer, Pathology Department without loss of benefits and any lawful entitlements to be paid within 30 days in accordance with the applicable Collective Bargaining Agreement
- 3.The Claimant to report back to work on 1st February, 2019 at 8.30 hours to the accounting officer and Vice-Chancellor for allocation of duties
- 4.Costs of the suit to the Claimant
- 5.In the alternative: the Respondent to pay the Claimant salaries due for 3 years; compensation amounting to 3 months' salary at the last gross salary due on 19th January 2016; and costs of the suit
- Jurisdiction invoked
- Section 12 of the Employment and Labour Relations Court Act, 2011 read together with section 49 of the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Wangai v Egerton University [2019] KEELRC 1906 (KLR)", Case Analysis (2019). Cause No. 224 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1906/eng@2019-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.