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ELRCPartially AllowedELRC 1120 of 2015· [2021] KEELRC 1858 (KLR)

David Obare v Kenyatta University [2021] KEELRC 1858 (KLR)

Employment and Labour Relations Court
8 April 2021
OMOnesmus N. Makau
3,265 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyatta University had to pay a long-serving employee over Kshs 700,000 because it fired him without proof of misconduct and without hearing him.

What this practically means

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Executive summary

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The claimant, employed by Kenyatta University from 1992 until his summary dismissal on 28.1.2015, sued alleging unfair dismissal. He was accused of unprocedurally allocating a servant quarter to a Mr Martin Wafula and collecting Kshs 3,000 monthly rent for three years. After a disciplinary hearing on 28.5.2014 was adjourned for further investigations, he was never recalled and was dismissed by a letter dated 28.1.2015. The respondent defended the dismissal as substantively justified and procedurally fair and raised a preliminary point that the claimant had not exhausted the internal appeal mechanism under its terms of service. The court framed three issues: validity of the reason, fairness of the procedure, and entitlement to reliefs. It found the respondent failed to prove a valid reason, since no Mpesa statements or documentary evidence of rent payments were produced, and the Board itself had adjourned in 2014 expressly seeking proof of payment that never materialised; Mr Wafula also admitted occupying the quarter at the invitation of a third party's son. On procedure, the court held the dismissal unfair because the claimant was not heard on the evidence allegedly adduced at the 21.1.2015 meeting at which the dismissal was decided. The court declared the dismissal unfair and unlawful, awarded one month's notice pay, twelve months' compensation (considering over twenty years of service), and leave for 2014, and ordered a certificate of service, totalling Kshs 703,066 subject to statutory deductions, plus costs and interest. Claims for eight years' lost salary and defamation damages were declined for lack of legal basis and substantiation respectively.

Key legal issues

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01

Whether the dismissal was grounded on a valid reason

Holding

No valid reason was proved; the respondent failed to adduce evidence that the claimant received rent from Mr Wafula.

Reasoning

Rw1 did not produce the Mpesa statements or other written evidence proving the alleged rent payments for three years. The Board itself had, on 28.5.2014, adjourned to gather evidence of payment, but the minutes of the 21.1.2015 meeting showed no new evidence. Mr Wafula admitted he occupied the servant quarter at the invitation of Dr Kimani's son, not through the claimant. The employer therefore failed to discharge its burden under sections 43 and 45.

p. 4
02

Whether the procedure followed was fair

Holding

Procedurally unfair because the claimant was never recalled for a further hearing before dismissal.

Reasoning

Under section 41 the employer must explain the reason and hear the employee's representations before dismissal. The claimant attended the 28.5.2014 hearing, which was adjourned for further investigations, but he was never called back to respond to any further incriminating evidence. The decision to dismiss was made at a meeting on 21.1.2015 at which he was not present nor heard.

p. 4

Legal principles established

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  • The burden of proving a valid reason for dismissing an employee rests with the employer.
  • A certificate of service is a right of an employee under section 51 of the Employment Act.

Court orders

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  1. 1.Declaration that the claimant's dismissal was unlawful and unfair under section 45 of the Employment Act
  2. 2.Payment of one month's salary in lieu of notice (Kshs 50,219)
  3. 3.Payment of 12 months' salary as compensation for unfair dismissal (Kshs 602,628)
  4. 4.Payment for leave for 2014 (Kshs 50,219)
  5. 5.Issuance of a Certificate of Service to the claimant
  6. 6.Award subject to statutory deductions plus costs and interest at court rates from the date of judgment
  7. 7.Decline of claim for salary for 8 years lost due to premature termination
  8. 8.Dismissal of claim for damages for defamation

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 43(1)
  • Employment Actsection 45
  • Employment Actsection 45(2)
  • Employment Actsection 49
  • Employment Actsection 51
  • Constitution of Kenya, 2010Article 47(1)
  • ELRC Procedure RulesRule 28(3)

Cases cited (5)

  • Kenya Human Right Commission & Another Vs Non-Governmental Coordination Board & Another
    [2018] eKLR
  • Daniel Kiplangat Kikebut Vs SMEP Deposit Taking Micro Finance Ltd
  • CMC Aviation Ltd Vs Mohammed Noor
    [2015] eKLR
  • David Gichagua Omuya Vs Mombasa Maize Millers Ltd
    [2014] eKLR
  • Anthony Mkala Chitavi Vs Malindi Water & Sewarage Co. Ltd
    [2013] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution establishing the Employment and Labour Relations Court

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, "David Obare v Kenyatta University [2021] KEELRC 1858 (KLR)", Case Analysis (2021). ELRC 1120 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1858/eng@2021-04-08

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