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ELRCPartially AllowedCause No 1649 of 2014· [2020] KEELRC 1803 (KLR)

Anthony Osoro v Multimedia University of Kenya [2020] KEELRC 1803 (KLR)

Employment and Labour Relations Court
31 January 2020
2,086 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 upheld Multimedia University's dismissal of its procurement officer but ordered payment of his accrued leave because the employer kept no leave records.

What this practically means

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Executive summary

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Anthony Osoro, a procurement professional at Multimedia University of Kenya, sued for wrongful dismissal and non-payment of terminal dues following termination of his employment on 10 June 2014 after an audit, disciplinary process and unsuccessful appeal. The Court found the termination procedurally fair: the Claimant was queried on audit findings, made written representations, appeared before a Council Sub-Committee and a Disciplinary Committee with a union representative present, and appealed. On substantive fairness, the Respondent proved at least two of nine allegations - issuing a notification of award to a consultant not approved by the Tender Committee contrary to the Public Procurement and Disposal Act, 2007, and failing to advise on the need for a formal contract with JKUAT - discharging its burden under sections 43 and 45 of the Employment Act. Compensation, pay in lieu of notice, salary to retirement, service pay (Claimant being an NSSF contributor) and withheld half salary were all refused. However, because the Respondent failed to produce leave records, the Court allowed the claim for accrued leave and directed the Respondent to reconcile its records and compute commuted leave entitlement, payable upon handover within 30 days. The Court also observed that formal clearance on separation should not be an issue of disputation and permitted informal handover notes. No order on costs. Judgment delivered at Nairobi on 31 January 2020 by Radido Stephen, Judge.

Key legal issues

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01

Procedural fairness of termination

Holding

Termination procedurally fair; Claimant given audit responses, written representations, oral hearing before Disciplinary Committee with a union representative present, and an appeal

Reasoning

Section 41 of the Employment Act requires notification of allegations and an opportunity to make representations accompanied by a colleague or union representative. The Claimant was queried on audit findings, formally charged with 9 allegations, rescheduled hearing to allow more preparation time with legal advice, made written and oral representations, and had a union representative present. The Court found full compliance with the statutory requirements of procedural fairness.

p. 2
02

Substantive fairness of termination

Holding

Respondent proved at least two of the nine allegations, discharging its burden under sections 43 and 45

Reasoning

The Claimant, as procurement professional and Tender Committee secretary, issued a notification of award to a consultant not approved by the Tender Committee, contrary to the Public Procurement and Disposal Act, 2007, and failed to advise on the need for a formal contract with JKUAT and on the irregular approval of a consultancy contract without a user department request. The Court held it unnecessary to consider the remaining allegations once some were proved.

p. 3
03

Unpaid leave

Holding

Allowed; Respondent directed to reconcile records and compute commuted leave entitlement

Reasoning

Section 10(3) & (7) of the Employment Act obliges the employer to produce leave records; the Respondent did not, and its witness did not address leave. In the absence of those records, the Court allowed the head of claim and directed the Respondent to reconcile its records and compute the entitlement to commuted leave.

p. 4
04

Leave to file further documents after hearing commenced

Holding

Application dismissed; party cannot repeatedly introduce unserved documents after hearing begins

Reasoning

The Respondent filed documents in 2014 but did not serve them until the morning of the hearing, and filed further documents after the Claimant concluded examination-in-chief, which the Court had already expunged. The Court held the issue of late documents could not be revisited, and dismissed the application with reasons reserved.

p. 1
05

Formal clearance/handover as precondition to terminal dues

Holding

Formal clearance should not be a matter of disputation; dues payable upon handover, formal or informal

Reasoning

The Court observed that an employee separating from an employer has a duty to hand over when called upon. If no formal clearance occurred, the Claimant should hand over formally, but informal handover notes may be used. Dues were to be paid timeously upon handover, both processes concluded within 30 days.

p. 4

Legal principles established

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  • An employer must prove reasons for termination and that they are valid and fair under sections 43 and 45 of the Employment Act
  • An employee whose contract is terminated prematurely cannot be compensated for the remainder of the period to retirement
  • An employer who fails to produce leave records and does not address leave in its evidence cannot defeat a claim for unpaid leave

Court orders

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  1. 1.Award of accrued leave and any other benefits as indicated in the separation letter, with the Respondent to reconcile its records and compute the Claimant's entitlement to commuted leave
  2. 2.Payment of the dues/benefits timeously upon handover, with handover and payment to be concluded within 30 days
  3. 3.No order on costs
  4. 4.If the Claimant did not formally clear/handover, he should hand over in a formal way; if there was informal handover, he may use any informal handover notes he kept

Authorities

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Legislation

  • Employment Actsection 35(1)(c)
  • Employment Actsection 35(5) & (6)
  • Employment Actsection 41
  • Employment Actsections 43 and 45
  • Employment Actsection 10(3) & (7)
  • Public Procurement and Disposal Actnot specified

Cases cited (1)

  • Bank of Uganda v Tinkamanyire
    (2009) 2 EA 66
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 35, 41, 43 and 45 applied); specific constitutional article not stated in the judgment

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, "Anthony Osoro v Multimedia University of Kenya [2020] KEELRC 1803 (KLR)", Case Analysis (2020). Cause No 1649 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1803/eng@2020-01-31

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