Michael Madara Ogot v University of Nairobi [2021] KEELRC 2019 (KLR)
The bottom line
#Kenya's Employment Court found the University of Nairobi unfairly sacked a professor for following orders, and ordered his immediate reinstatement with full pay.
What this practically means
#Executive summary
#Key legal issues
#Whether the disciplinary procedure adopted by the Respondent was fair
The procedure was fair: the claimant was issued a notice to show cause, responded, attended a disciplinary hearing, was allowed witnesses and accompaniment, and was informed of his right of appeal.
The claimant acknowledged receiving the notice to show cause and responding; he was invited to and attended the hearing before the Council; he was informed he could call witnesses and be accompanied by a fellow employee; and he was notified of a 14-day right of appeal which he chose not to exercise. The court found this consistent with the law and the Respondent's procedures.
Whether there were valid reasons for the termination
There were no valid reasons. The claimant acted on the authority of the Acting Vice Chancellor and the University Executive Board, the memo's contents were factual, and the charges of insubordination failed because the Council did not exist at the material time.
Prof. Mbeche's sworn statement confirmed he instructed the claimant to draft and issue the memo, which he reviewed and approved. The memo's contents mirrored the Gazette Notices and were factual. The Council had been revoked, so it could not be insubordinated. The employer did not even contact the Acting Vice Chancellor to verify the claimant's explanation, confirming victimisation motivated by displeasure over the removals.
Whether the claimant's evidence of instructions from Prof. Mbeche, not adduced before the disciplinary committee, was admissible before the court
Yes; the court may consider all relevant evidence placed before it, and the claimant had repeatedly asserted the instruction in his responses and at the hearing.
The Respondent argued that because the claimant declined to avail Prof. Mbeche as a witness at the disciplinary hearing, his evidence should be excluded. The court held there was no legal basis for exclusion, and in any event the claimant's assertions about the instruction were before the disciplinary committee throughout his responses and hearing, so the evidence was properly before the court.
Whether the termination was actuated by malice
Yes; the disciplinary process was malicious, motivated by the displeasure of the Council members, Chairperson and Vice Chancellor who were the subject of the impugned memo and who sat on the disciplinary committee.
The court noted that the claimant had been ranked position two in the Vice Chancellor recruitment, that the subjects of the impugned memo were themselves part of the disciplinary committee, and that the Respondent failed to verify the claimant's explanation with the Acting Vice Chancellor. These factors demonstrated the process was driven by displeasure over the removals and the claimant's communication of them.
Remedies - declaration and reinstatement
The termination was declared unlawful and unfair and the claimant was reinstated immediately without loss of pay or benefits, the position being vacant and his performance unimpeached.
Having found no reason at all for the termination, the court declared it unlawful and unfair as sought. Reinstatement was granted because the DVC Research position remained vacant and the claimant's performance in that position had not been questioned in the proceedings, satisfying the court that reinstatement was appropriate.
Legal principles established
#- A Gazette Notice is prima facie valid and not illegal unless and until declared illegal by a court.
- A court hearing an employment dispute is not limited to evidence adduced before an internal disciplinary committee but may consider all relevant evidence placed before it.
- An employee cannot be disciplined for insubordination of an organ that did not exist at the material time.
Court orders
#- 1.A declaration that the termination of the claimant's employment as Deputy Vice Chancellor, Research, Production and Extension was unlawful and unfair
- 2.Immediate reinstatement of the claimant to the position of Deputy Vice Chancellor Research Production and Extension without any loss of pay or benefits
- 3.The respondent shall bear the claimant's costs of the suit
- Jurisdiction invoked
- Employment and labour relations jurisdiction (Article 162(2) of the Constitution, implied); the judgment does not expressly cite the jurisdictional provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Madara Ogot v University of Nairobi [2021] KEELRC 2019 (KLR)", Case Analysis (2021). Cause No E617 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2019/eng@2021-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.