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ELRCPartially AllowedPetition No. 18 of 2018· [2021] KEELRC 1003 (KLR)

Joshua Onduru Nyayiera v Egerton University [2021] KEELRC 1003 (KLR)

Employment and Labour Relations Court
21 September 2021
3,509 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a dismissed Egerton University worker over Kshs. 800,000 because his employer could not prove why it fired him.

What this practically means

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Executive summary

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The petitioner, a messenger employed by Egerton University since 2009 on a salary of Kshs. 30,730, was dismissed on 20th August 2018 following a disciplinary hearing held on 17th August 2018. The charges against him were that on 15th July 2018 he entered the main administration building with unauthorised persons without clearance and tampered with CCTV cameras, amounting to gross misconduct. He petitioned the court seeking declarations that the show cause letter and disciplinary proceedings were illegal and unconstitutional, orders of certiorari, reinstatement, and damages for violation of Articles 27, 41, 47 and 50 of the Constitution. The respondent maintained that the dismissal was for gross misconduct under section 44(4)(g) of the Employment Act, that due process was followed, and that the petitioner had failed to exhaust internal appeal mechanisms. The court framed four issues: validity of reasons, due process, constitutional violations, and remedies. On the evidence, the disciplinary minutes were incomplete and incoherent, the petitioner's name was missing from the list of attendees, CCTV footage was examined in his absence and its contents were never disclosed, and no evidence was laid before the court proving the allegations. Applying sections 41 and 43 of the Employment Act, the court held that the respondent failed to prove valid reasons and did not accord the petitioner a fair hearing. Articles 41 and 50(1) were infringed, but no breach of Article 27 was established as the petitioner did not demonstrate discrimination. The court awarded the equivalent of 10 months' salary (Kshs. 307,300) for unfair dismissal, Kshs. 500,000 in constitutional damages, less statutory deductions, plus costs and interest. Reinstatement and the quashing orders sought were not granted.

Key legal issues

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01

Validity of reasons for dismissal

Holding

The respondent failed to prove valid reasons for the dismissal; the allegations of unauthorized entry and CCTV tampering were not established by evidence before the court

Reasoning

The dismissal letter cited gross misconduct, but the minutes of the disciplinary hearing were incomplete and incoherent, and no evidence connecting the petitioner to the alleged offences was laid before the court. Section 43 of the Employment Act places the burden of proving reasons for termination on the employer, and where the employer fails, the termination is deemed unfair under section 45.

p. 5
02

Due process in disciplinary proceedings

Holding

The disciplinary process did not satisfy section 41 of the Employment Act; the minutes were unclear, the petitioner's name was missing from the attendees list, and CCTV footage was examined in his absence

Reasoning

Section 41 requires the employer to explain the reasons for termination and to hear the employee's representations. The minutes produced were not flowing and ran unevenly; it was unclear whether the petitioner attended or whether a witness was cross-examined. Evidence from CCTV footage was taken in the petitioner's absence and its contents were never disclosed to the court.

p. 5
03

Violation of constitutional rights (Articles 27, 41, 50(1))

Holding

Articles 41 (fair labour practices) and 50(1) (fair hearing) were infringed; Article 27 was not violated

Reasoning

Having found the dismissal was without valid reasons and without due process, the court held that the right to fair labour practices and the right to a fair hearing were infringed. However, the petitioner did not explain how he was discriminated against or in relation to whom, so no breach of the equality guarantee under Article 27 was established.

p. 5
04

Remedies for unfair dismissal and constitutional violations

Holding

Damages equivalent to 10 months' salary (Kshs. 307,300) for unfair dismissal plus Kshs. 500,000 for breach of constitutional rights, total Kshs. 807,300, less statutory deductions

Reasoning

The court found for the petitioner on the unfair termination claim and on the constitutional violations, exercising discretion to award the equivalent of 10 months' gross salary based on his salary of Kshs. 30,730, and separate constitutional damages of Kshs. 500,000. Costs and interest were also granted.

p. 6

Legal principles established

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  • An employer bears the burden of proving valid reasons for termination; failure to do so renders the termination unfair
  • Where disciplinary minutes are incomplete and evidence (such as CCTV footage) was considered in the employee's absence, the employer has not demonstrated that a fair hearing was accorded

Court orders

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  1. 1.Award of damages equivalent to 10 months' salary (Kshs. 307,300) for unfair dismissal, subject to statutory deductions
  2. 2.Award of Kshs. 500,000 as damages for breach of constitutional rights
  3. 3.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 20, 22, 23, 27, 41(1), 41(2)(b), 47(1), 50(1), 165
  • Employment ActSections 41, 43, 44(4)(g), 45, 49
  • Fair Administrative Actions ActSection 4
  • Universities ActSection 63
  • Employment and Labour Relations Court (Procedure) Rules 2016General

Cases cited (6)

  • Obuya Bagaka v Kenya School of Government
    [2021] eKLR
  • Kenya County Government Workers Union v Wajir County Government & another
    [2020] eKLR
  • Peter Wambugu Kariuki & 16 others v Kenya Agricultural Research Institute
    [2013] eKLR
  • Anthony Mkala Chitavi v Malindi Water & Sewerage Company Limited
    [2013] eKLR
  • Paul Kuria Kiore v Kenyatta University
    [2016] eKLR
  • Reuben Njuguna Gachukia and another v Inspector General of National Police Service and 4 others
    [2019] eKLR
Jurisdiction invoked
Articles 10, 20, 22, 23 and 165 of the Constitution; Employment and Labour Relations Court (Procedure) Rules 2016

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, "Joshua Onduru Nyayiera v Egerton University [2021] KEELRC 1003 (KLR)", Case Analysis (2021). Petition No. 18 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1003/eng@2021-09-21

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