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ELRCPartially AllowedCause No 33 of 2021· [2022] KEELRC 1320 (KLR)

Litiema v Masinde Muliro University of Science and Technology (MMUST) (Cause 33 of 2021) [2022] KEELRC 1320 (KLR)

Employment and Labour Relations Court
12 May 2022
JKJ. W. Keli
4,286 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a university driver was unfairly fired over a missing mattress and paid for blowing the whistle on corruption.

What this practically means

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Executive summary

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The Claimant, a former ambulance driver at Masinde Muliro University of Science and Technology, was dismissed on 16th February 2018 for allegedly failing to account for a mattress placed in the ambulance during a patient transfer on 21st July 2016. He sued seeking a declaration that the termination was unlawful, reinstatement, compensation of Kshs 650,920/- and costs. The court framed three issues: whether the termination was lawful and fair, whether the Claimant was discriminated, harassed and intimidated, and his entitlement to reliefs. The court held that the employer failed to prove the loss of the mattress: the internal security report rested on speculation, there was no gate pass and no direct evidence the mattress was handed to the Claimant, whose role was to drive. The timing - nearly a year after the alleged loss, after the Claimant's clearance for transfer, and following his whistle-blowing complaints to the EACC - led the court to find victimisation and harassment contrary to section 5(3)(b) of the Employment Act. The disciplinary process was also procedurally unfair because the committee denied the Claimant presence at the witnesses' accounts and the right to cross-examine them, and there was no evidence union representatives did so on his behalf. Reinstatement was refused as three years had lapsed; service pay was refused as he was in a pension scheme. The court awarded 12 months' salary as compensation (Kshs 510,552/-), three months' notice pay (Kshs 127,638/-), nominal damages of Kshs 100,000/- for victimisation, a certificate of service, interest, and ordered each party to bear own costs.

Key legal issues

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01

Whether there was a valid reason for termination

Holding

The Respondent failed to prove loss of the mattress; the security report was speculation and no gate pass or direct evidence of handover existed

Reasoning

The employer bore the burden under section 43. The internal security report speculated that unaccounted time and distance were used to dispose of the mattress, but there was no evidence of the mattress type, no proof it was handed to the Claimant, and no gate pass. The nurse said the mattress was placed in the ambulance and the clinical officer sat with the patient. The delay and the Claimant's transfer clearance supported victimisation for whistle blowing.

p. 6
02

Whether the disciplinary procedure was fair

Holding

Procedure was unfair; the Claimant was denied presence at witness testimony and the right to cross-examine, with no evidence union representatives cross-examined witnesses

Reasoning

Section 41 requires the employee be afforded an opportunity to be heard. The committee declined the Claimant's request to be present and cross-examine witnesses, claiming he was represented and might intimidate witnesses. No evidence showed the union representatives cross-examined anyone, and the union protested. An employee must face his accusers; representation cannot substitute his presence against his will.

p. 7
03

Whether the Claimant was victimised and harassed for whistle blowing

Holding

The court found the Claimant was victimised and harassed for his whistle-blowing complaints to the EACC, contrary to section 5(3)(b)

Reasoning

The disciplinary action came almost a year after the alleged loss and after the Claimant's clearance for transfer, and shortly after his complaint of corruption to the EACC. The EACC itself wrote that the punishment was disproportionate to the offence allegedly committed 18 months earlier, fortifying the inference of victimisation linked to whistle blowing.

p. 7
04

Entitlement to reinstatement

Holding

Reinstatement unavailable as three years had lapsed since dismissal and relations had broken down

Reasoning

Section 12(3)(vii) of the Employment and Labour Relations Act permits reinstatement only within three years of dismissal. The dismissal letter was dated 16th February 2018 and judgment came in May 2022, beyond the statutory window. The court also noted the relationship between the parties had broken down, making reinstatement impracticable.

p. 8

Legal principles established

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  • For termination to be lawful it must comply with section 43 of the Employment Act, and the burden of proving valid reasons lies with the employer
  • An accused employee must be afforded the opportunity to face his accuser and challenge their information; union representation cannot replace the employee's presence at a disciplinary hearing against his will
  • An employer who harasses or victimises an employee for whistle blowing breaches section 5(3)(b) of the Employment Act

Court orders

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  1. 1.Compensation pay at the equivalent of 12 months salary, Kshs 510,552/-
  2. 2.Notice pay in lieu at equivalent of 3 months salary, Kshs 127,638/-
  3. 3.Damages for victimization of Kshs 100,000/-
  4. 4.Respondent to issue the Claimant with certificate of service pursuant to section 51 of the Employment Act
  5. 5.Each party to bear own costs
  6. 6.Interest on the award amounts at court rate from date of judgment until payment in full

Authorities

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Legislation

  • Employment Act, 2007Section 43 and 43(2)
  • Employment Act, 2007Section 45(2)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 44(4)(c)
  • Employment Act, 2007Section 49
  • Employment Act, 2007Section 35(6)
  • Employment Act, 2007Section 51
  • Employment Act, 2007Section 5(3)(b)
  • Employment and Labour Relations ActSection 12(3)(vii) and Section 12(3)
  • KUDHEIHA CBAClause 5 d(iii), part II section 5(2), clause 5 (notice period)
  • Code of Conduct and Ethics for Public Universities 2003Section 8(1 and 2), part III sections 8, 9(a) and 15(1)

Cases cited (2)

  • Benard Shem Koweru v United Millers Limited
    (2020) eKLR
  • Standard Group Limited v Jenny Luesby
    [2018] eKLR
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act; Sections 41, 43, 45, 49, 51 of the Employment Act, 2007

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, "Litiema v Masinde Muliro University of Science and Technology (MMUST) (Cause 33 of 2021) [2022] KEELRC 1320 (KLR)", Case Analysis (2022). Cause No 33 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1320/eng@2022-05-12

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