Joseph Oketch Oduro v Jomo Kenyatta University of Agriculture And Technology [2022] KEELRC 956 (KLR)
The bottom line
#Kenya's employment court ruled a university fairly fired a deputy director for misconduct, but the dismissal was still unlawful because he was never given a fair hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the reasons for dismissal were valid and fair
Valid and fair - the claimant, as Deputy Director and Chairman of the Procurement Committee, participated in and condoned procurement malpractices and misappropriation of funds, justifying summary dismissal for loss of trust
The Council approved the land purchase conditionally; the claimant chaired the Procurement Committee and was a bank signatory; funds were transferred and paid to consultants linked to staff; the claimant admitted approving advance payments to four suppliers before delivery. As second-in-command he let the Director mismanage procurement and fully participated in the mess. Loss of trust warranted dismissal under section 44 of the Employment Act.
Whether the procedure followed was fair
Procedurally unfair - the employer failed to prove that the show cause letter and charge sheet were served on the claimant before the disciplinary hearing of 13.4.2016
The terms of service did not mandate hand delivery of show cause letters; email was a permissible mode. However, the burden lay on the employer to prove the letter was emailed before the hearing. Without evidence such as a printed email, the court accepted the claimant's allegation that he was denied a fair hearing. The employer also failed to facilitate the claimant's repatriation from Kigali to attend the hearing, contrary to Article 47 of the Constitution and section 41 of the Employment Act.
Whether the claimant is entitled to the reliefs sought
Partially - notice pay, 4 months' compensation and proved contractual allowances awarded; family relocation allowances, gratuity and withheld salary refused for lack of proof or forfeiture by misconduct
Following the finding of procedural unfairness, section 49(1) applied, yielding one month's notice and four months' gross salary compensation. Relocation allowances under clause 9.8 and Schedule XI of the Terms of Service were awarded only for the claimant absent proof his family travelled. Part-time teaching allowance was awarded as prayed; gratuity and withheld suspension salary were forfeited because dismissal was for gross misconduct.
Legal principles established
#- An employer bears the burden of proving that the reason for dismissal is valid and fair and that a fair procedure was followed
- Where the employer claims an employee was served with a notice to show cause and failed to attend a disciplinary hearing, it must prove service; absent such proof the dismissal is procedurally unfair
- Even an employee guilty of misconduct is entitled to a fair opportunity to defend himself before dismissal
Court orders
#- 1.Declaration that the summary dismissal of the claimant was unfair within the meaning of section 45 of the Employment Act and therefore unlawful
- 2.One month salary in lieu of notice of Kshs. 91,501
- 3.Compensation of 4 months' gross salary (Kshs. 366,004) under section 49(1) of the Employment Act
- 4.Relocation and subsistence allowance to Kigali of USD 6,990 (Kshs. 789,870)
- 5.Relocation and subsistence allowance to Kenya of USD 6,990 (Kshs. 789,870)
- 6.Baggage allowance to Kenya of Kshs. 6,684
- 7.One month basic salary on transfer to Kenya of Kshs. 91,501
- 8.Acting allowance of Kshs. 3,020.66
- 9.Part time teaching allowance of Kshs. 1,027,130
- 10.One way air ticket to Kenya of USD 270 (Kshs. 30,510)
- 11.Leave and leave travelling allowance of Kshs. 14,000
- 12.Respondent directed to issue the claimant with a certificate of service in line with section 51 of the Employment Act
- 13.Costs of the suit to the claimant and interest at court rates from the date of judgment; award subject to statutory deductions; USD items converted at Kshs. 113 per Dollar
- Jurisdiction invoked
- Employment and Labour Relations Court Act and Employment Act, first-instance claim for unfair summary dismissal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Oketch Oduro v Jomo Kenyatta University of Agriculture And Technology [2022] KEELRC 956 (KLR)", Case Analysis (2022). Cause No. 2541 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/956/eng@2022-01-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.