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ELRCPartially AllowedEmployment and Labour Relations Court at Nairobi (Claim dated November 21, 2018)· [2023] KEELRC 864 (KLR)

Muriuki v Kenyatta University (Cause 1550 of 2018) [2023] KEELRC 864 (KLR)

Employment and Labour Relations Court
14 April 2023
4,642 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenyatta University's dismissal of a pharmacist was ruled unfair because it never produced the CCTV footage backing the theft allegations, costing it over Kshs 2.1 million.

What this practically means

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Executive summary

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The claimant, a pharmaceutical technologist employed by Kenyatta University since February 1997, was dismissed in August 2018 following allegations that he colluded with his supervisor and a third party to steal drugs from the University pharmacy. He sued for compensatory damages, notice pay, leave pay, general damages for loss of reputation, accrued retirement benefits, a certificate of service, interest and costs, alleging his dismissal was unprocedural and unconstitutional. The respondent maintained that the dismissal was for a justifiable reason, supported by CCTV footage of the theft, and that the claimant was accorded a fair disciplinary process. The court framed three issues: justifiable reason, procedural fairness, and entitlement to reliefs. On substance, the court found that the respondent's case hinged entirely on CCTV footage that was never produced and that no witness who viewed the footage or prepared the investigation report testified; the allegations therefore remained bare and the employer failed to discharge its burden under sections 43(1) and 45(2)(a) and (b) of the Employment Act, rendering the termination unfair. However, on procedure, the court held that the claimant was notified of the charges, given an opportunity to be heard before the Senior Board of Discipline and a right of appeal, satisfying section 41 of the Act. The court awarded compensatory damages of eight months' gross salary (Kshs 1,497,872.00), three months' notice pay (Kshs 561,702.00), accrued leave (Kshs 98,387.00), totaling Kshs 2,157,961.00 with interest, plus accrued retirement benefits and a certificate of service within 30 days. General damages for loss of reputation and earnings to retirement were declined. As the claimant filed no submissions, each party was ordered to bear its own costs.

Key legal issues

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01

Whether the employer proved a valid and fair reason for summary dismissal on theft allegations

Holding

Termination was unfair as the respondent failed to prove the allegations to the requisite standard

Reasoning

The respondent's case rested entirely on CCTV footage that was never produced in court, and no evidence was given by the person who viewed the footage and prepared the investigation report. Without this crucial evidence, the allegations of drug theft remained bare assumptions, and the employer failed to discharge its burden under sections 43(1) and 45(2)(a) and (b) of the Employment Act.

p. 8
02

Whether the claimant was accorded procedural fairness before dismissal

Holding

Procedural fairness was accorded; the respondent complied with section 41 of the Employment Act

Reasoning

The claimant was notified of the allegations in the suspension and invitation letters, given an opportunity to submit a written defence and appear before the Senior Board of Discipline, made verbal responses recorded in the proceedings, and had a right of appeal. The requirements set out in Postal Corporation of Kenya v Andrew K. Tanui were fulfilled.

p. 9
03

Whether the claimant was entitled to the reliefs sought

Holding

Compensatory damages, notice pay, accrued leave and retirement benefits awarded; general damages and lost earnings to retirement declined

Reasoning

The court awarded eight months' gross salary as compensatory damages considering the length of employment, three months' notice pay under the Terms of Service, and accrued leave since the respondent failed to produce leave records under section 74(1)(f). General damages for reputation and future earnings to retirement were declined.

p. 9

Legal principles established

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  • The employer bears the burden of proving valid and fair reasons for termination under sections 43(1) and 45(2) of the Employment Act
  • Failure to produce crucial evidence such as CCTV footage that forms the basis of disciplinary charges leaves allegations unproven
  • Elements of procedural fairness under section 41 of the Employment Act as stated by the Court of Appeal

Court orders

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  1. 1.Judgment entered in favour of the claimant against the respondent
  2. 2.Compensatory damages of Kshs 1,497,872.00 (8 months gross salary)
  3. 3.Three months' salary in lieu of notice of Kshs 561,702.00
  4. 4.Accrued leave days of Kshs 98,387.00
  5. 5.Total award of Kshs 2,157,961.00 with interest at court rates from date of judgment until payment in full
  6. 6.Benefits accrued under the respondent's Staff Retirement Benefits Scheme to the claimant
  7. 7.Certificate of service to issue within 30 days under Section 51(1) of the Employment Act
  8. 8.Each party to bear own costs

Authorities

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Legislation

  • Employment ActSection 43(1)
  • Employment ActSection 45(2)(a), (b) and (c)
  • Employment ActSection 41(1)
  • Employment ActSection 74(1)(f)
  • Employment ActSection 51(1)
  • Evidence Actprovisions on electronic evidence
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (3)

  • Samson Thuku Mutiso vs Diamond Trust Bank Kenya Limited
    (2015) eKLR
  • Andrew Amatulla vs Kenyatta University
    (2019) eKLR
  • Postal Corporation of Kenya vs Andrew K. Tanui
    [2019] eKLR
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court under the Employment Act and the Constitution

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, "Muriuki v Kenyatta University (Cause 1550 of 2018) [2023] KEELRC 864 (KLR)", Case Analysis (2023). Employment and Labour Relations Court at Nairobi (Claim dated November 21, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/864/eng@2023-04-14

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