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ELRCPartially AllowedELRC Cause (Turkana) - unfair termination claim filed January 26, 2021· [2022] KEELRC 1623 (KLR)

Akuja v Turkana University College Council (Cause E002 of 2021) [2022] KEELRC 1623 (KLR)

Employment and Labour Relations Court
24 May 2022
HWHellen Wasilwa
7,743 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The claimant, employed in June 2018 as Principal of Turkana University College on a five-year contract, was placed on indefinite compulsory leave on January 29, 2020 to pave way for investigations into alleged corruption, abuse of office, insubordination, conflict of interest, financial impropriety and flouting of procurement procedures. He was served with two notices to show cause (February 26, 2020 and September 16, 2020) and invited to disciplinary hearings in October and December 2020. He requested documents including an audit report, investigation report and council minutes, which the respondent declined to furnish, describing them as unavailable or privileged. He walked out of the hearing and the committee proceeded in his absence, taking evidence from eight witnesses, and terminated his employment on January 14, 2021 for gross misconduct. The court framed three issues: validity of the reasons for termination, due process, and remedies. It found the respondent failed to prove the allegations - its own witnesses disputed the absenteeism and DSA claims and confirmed the vehicle purchase followed due process, and no audit or investigation report was produced. On procedure, the court found no investigation preceded the process, requested documents were withheld, witness statements were never recorded or disclosed, and the hearing proceeded in the claimant's absence, contravening sections 41 and 45 of the Employment Act and section 4 of the Fair Administrative Action Act. The termination was declared unfair. Reinstatement was declined because of the breakdown in relations; the claimant was awarded one month's salary in lieu of notice (Kshs 832,891) and maximum 12 months' compensation (Kshs 9,994,692), totalling Kshs 10,827,583 less statutory deductions, a certificate of service, and costs with interest from the date of judgment.

Key legal issues

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01

Validity of reasons for termination

Holding

The respondent failed to prove the charges of neglect of duty, absenteeism and financial impropriety; the reasons for dismissal were not valid

Reasoning

The court examined the evidence of the respondent's own witnesses, who disputed the DSA/absenteeism allegation and confirmed the vehicle purchase followed procurement processes. No audit report or investigation report was produced to substantiate the allegations of financial impropriety. Under section 43 of the Employment Act the employer must prove the reasons for termination, and the charges were not fully discharged.

p. 14
02

Procedural fairness of the disciplinary process

Holding

The disciplinary process was procedurally flawed - no investigation preceded it, requested documents were never furnished, witness statements were not recorded or supplied, and the hearing proceeded in the claimant's absence, breaching sections 41 and 45 of the Employment Act and section 4 of the Fair Administrative Action Act

Reasoning

The HR Manual required an investigation to precede the disciplinary process, but no investigation report existed or was produced. RW2 admitted none of the claimant's requests for documents (audit report, investigation report, minutes) were met. Eight witnesses testified before the committee in the claimant's absence without witness statements being disclosed. This denied the claimant a fair opportunity to prepare his defence.

p. 15
03

Remedies for unfair termination

Holding

Reinstatement declined due to breakdown of the employment relationship; claimant awarded one month's salary in lieu of notice and maximum 12 months' compensation given the wasted 5-year contract

Reasoning

Although reinstatement would ordinarily have been the best remedy, the altercation during the disciplinary hearing created bad blood making it impractical. The court instead granted the alternative relief of maximum compensation under section 49 of the Employment Act, considering the injustice, delay in hearing the claimant, and the fact that the 5-year contract running to June 2023 had been cut short.

p. 18
04

Delay exceeding six months in disciplinary process

Holding

The delay beyond six months under section 63 of the Universities Act and clause D.5.2.2(c) of the HR Manual was explained (lapse of council tenure, reconstitution of new council, Covid-19 pandemic and pending litigation), though it formed part of the injustice considered in the compensation award

Reasoning

The respondent attributed the delay to the expiry of the previous council's term on March 9, 2020, the inauguration of a new council on May 27, 2020, the pendency of ELRC Petition E003 of 2020 and interim orders, and the Covid-19 pandemic. The claimant's own cross-examination confirmed these intervening events. The court factored the delay into its finding of injustice in the compensation calculus rather than treating the process as a nullity on this ground alone.

p. 18

Legal principles established

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  • The employer bears the burden of proving the reason or reasons for termination; failure to do so renders the termination unfair
  • An employer must accord an employee fair procedure including disclosure of documents to be relied upon before termination

Court orders

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  1. 1.The claimant be paid 1 month salary in lieu of notice of Kshs 832,891
  2. 2.Compensation equivalent to 12 months' salary for unfair termination of Kshs 9,994,692 (total awarded Kshs 10,827,583 less statutory deductions)
  3. 3.Order for issuance of a certificate of service to the claimant
  4. 4.The respondents to pay costs of the suit plus interest at court rates with effect from the date of the judgment

Authorities

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Legislation

  • Employment Actsections 41, 43, 44(4), 45(2)
  • Universities Actsection 63
  • Fair Administrative Action Actsection 4
  • Public Finance Management Actsections 68(1)(1), (2)(a) and (e)
  • Public Procurement & Asset Disposal Actgenerally
  • Turkana University College Ordersection 16
  • Turkana University College Human Resource Manualclauses D.5.2.2(c), D.5.3, D.5.2.3, E.2.11
  • Code of Conduct and Ethics for Public Universitiesclause 8(1), (2) and (3)
  • Constitution of Kenya 2010article 41

Cases cited (3)

  • Anthony Mkala Chitavi v Malindi Water & Sewerage Co Ltd
    Cause No 66 of 2012
  • Walter Kiplangat Serem v Turkana University College Council
    [2020] eKLR
  • Reuben Ikatwa & 17 others v Commanding Officer British Army Training Unit Kenya & Another
    [2017] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution (establishment of the Employment and Labour Relations Court); Employment and Labour Relations Court Act

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, "Akuja v Turkana University College Council (Cause E002 of 2021) [2022] KEELRC 1623 (KLR)", Case Analysis (2022). ELRC Cause (Turkana) - unfair termination claim filed January 26, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1623/eng@2022-05-24

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