Wilson Ngaruiya Njoroge & another v Jomo Kenyatta University of Agriculture And Technology [2019] KEELRC 1984 (KLR)
The bottom line
#A Kenyan court ruled two long-serving university finance staff were unfairly dismissed because the employer couldn't prove the misconduct, awarding them over Kshs 4 million.
What this practically means
#Executive summary
#Key legal issues
#Evidential value of an untested adopted witness statement
The court refused to consider the adopted written statement of Dr. Obwogi because the maker was not cross-examined despite the claimants' counsel having indicated an intention to cross-examine.
The court held that non-objection by the claimants' counsel could not be presumed as consent to adoption of the statement without the maker's attendance. Counsel had signalled she wished to cross-examine, and the defence should have approached the matter cautiously. Given the risk of prejudice to the claimants, the statement was excluded, though the court noted neither party relied on it as core evidence.
Whether there was a valid and fair reason for dismissal
The respondent failed to prove that the claimants prepared and approved the payment voucher based on a photocopied document; the dismissal was unjustified and unfair under section 45.
The court found on the documents that the photocopied list (D2a) was a copy of the original list (D1a), which RW1 admitted was genuine. The claimants' evidence that they used the original list before it was tampered with was unrebutted, and the payment was completed on 30.6.2008, making the later use of the original list implausible. The employer therefore failed to discharge its burden under sections 43 and 45.
Whether a fair procedure under section 41 was followed
The respondent proved a fair procedure: the claimants were notified of the charges, heard with union representatives, and granted appeals.
The claimants admitted being served with suspension letters, a hearing invitation with charges, being heard in the presence of two union representatives, and having a right of appeal which was heard. The court dismissed allegations of denial of access to documents and of conflicted panels, reasoning that the claimants should have made formal requests or objections through their union.
Entitlement to remedies under sections 35 and 49 of the Employment Act
Each claimant awarded one month's notice pay plus 12 months' salary compensation considering 20 years' service and no proven misconduct, plus half-pay salary arrears for the suspension period.
Having found the dismissal substantively unfair, the court exercised its discretion under section 49(1) to award maximum-equivalent compensation of 12 months' salary given long service of 20 years and absence of proven contributory misconduct. Notice pay flowed from section 35(1)(c), and half-pay for the five-month suspension was granted as the respondent had conceded willingness to pay it.
Legal principles established
#- Under sections 43 and 45 of the Employment Act, the burden of proving a valid and fair reason for termination lies with the employer, to be discharged on a preponderance of evidence.
- An adopted witness statement that is not tested by cross-examination, where the opposing party indicated an intention to cross-examine, risks prejudice and may be excluded.
- Statutory awards under sections 35(1)(c) and 49(1) of the Employment Act are payable whether specifically pleaded or not.
Court orders
#- 1.Judgment entered for the Claimants against the Respondent
- 2.1st Claimant awarded notice pay of Kshs.155,790, compensation of Kshs.1,869,480 and salary arrears of Kshs.389,475, total Kshs.2,414,745
- 3.2nd Claimant awarded notice pay of Kshs.114,274, compensation of Kshs.1,371,000 and salary arrears of Kshs.285,625, total Kshs.1,770,899
- 4.Claimants awarded costs of the suit
- 5.Interest on the award at court rates from the date of judgment
- 6.Award subject to statutory deductions
- 7.Rejected written statement of Dr. Joseph Obwogi excluded from consideration
- 8.Claims for hardship allowance, fees refund/waiver, loan penalty, salary increment arrears, leave allowance and service pay/gratuity dismissed
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (ss. 35, 41, 43, 45, 49)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wilson Ngaruiya Njoroge & another v Jomo Kenyatta University of Agriculture And Technology [2019] KEELRC 1984 (KLR)", Case Analysis (2019). Not stated in judgment (Cause commenced 20 July 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1984/eng@2019-03-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.