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ELRCDismissedStatement of Claim dated 8th April, 2021· [2022] KEELRC 293 (KLR)

Richard Boiyo v Meru University of Science and Technology [2022] KEELRC 293 (KLR)

Employment and Labour Relations Court
23 March 2022
DMD.K. NJAGI MARETE
2,187 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan university lawfully dismissed a lecturer who took a government job while still bound by his study bond to serve the university for three years.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent university as an Assistant Lecturer from 10th June 2013, sued challenging the termination of his employment by letter dated 13th March 2020. He had taken study leave to pursue a PhD in China from 2015 to 2018, signing a study bond agreement requiring him to serve for three years on return. He later sought leave of absence without pay to take up an appointment as County Chief Officer for Environment, Energy and Natural Resources in Vihiga County. The Respondent declined the leave, accused him of desertion, and dismissed him after disciplinary proceedings. The Claimant sought reinstatement, declarations that the termination and refusal of leave were unfair, CBA dues, damages, and protection for his bond sureties. The Respondent denied the claim and counterclaimed Kshs.2,147,866.00 under the bond. The court framed three issues: lawfulness of termination, entitlement to relief, and costs. Holding that the Claimant was bound by the bond to serve on return and that taking up county employment without authorization amounted to desertion, the court found the Respondent had demonstrated default which the Claimant did not rebut. The Claimant failed to discharge his burden under Section 47(5) of the Employment Act of proving unfair termination on a balance of probabilities. The claim was dismissed in its entirety, with each party bearing their own costs. The court did not expressly rule on the Respondent's counter-claim.

Key legal issues

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01

Whether the termination of the claimant's employment was wrongful, unfair and unlawful

Holding

Termination was lawful; the claimant deserted duty by taking up alternative employment without authorization and defaulted on his bond

Reasoning

The court found that the claimant was bound by the study bond agreement to work for the Respondent for three years upon return from China. Taking up the Vihiga County Chief Officer position without authorization constituted desertion. The claimant did not controvert the demonstrated default and failed to discharge his burden under Section 47(5) of the Employment Act of proving unfair termination on a balance of probabilities.

p. 4
02

Whether the claimant is entitled to the relief sought

Holding

Not entitled; having failed on the unlawful termination claim, all reliefs fall away

Reasoning

The court held that entitlement to the reliefs flowed from success on the substantive claim of unlawful termination. Since that claim failed, the claimant became disentitled to the reliefs, including reinstatement, declarations, CBA dues, damages and compensation.

p. 4
03

Who bears the costs of the cause

Holding

Each party to bear their own costs

Reasoning

Although the claim was dismissed and the Respondent prevailed, the court declined to award costs to the Respondent, ordering instead that each party bear their own costs.

p. 4

Legal principles established

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  • The burden of proving unfair termination rests on the employee, while the burden of justifying the grounds for termination rests on the employer
  • An employee on study leave bonded to serve remains bound to work for the employer on return and on its terms

Court orders

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  1. 1.Dismissal of the claim
  2. 2.Each party to bear their own costs of the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 41, 47, 28
  • Employment ActSections 45, 46, 47(5)
Jurisdiction invoked
Employment and labour relations jurisdiction (Employment Act; Articles 41, 47 and 28 of the Constitution pleaded by the Claimant)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Richard Boiyo v Meru University of Science and Technology [2022] KEELRC 293 (KLR)", Case Analysis (2022). Statement of Claim dated 8th April, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/293/eng@2022-03-23

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