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ELRCPartially AllowedCause No. 595 of 2016 (Consolidated with Causes Nos. 266 of 2016 and 345 of 2016)· [2023] KEELRC 1270 (KLR)

Wambui & 4 others v Kenya Utalii College (Employment and Labour Relations Cause 595, 345 & 266 of 2016 (Consolidated)) [2023] KEELRC 1270 (KLR)

Employment and Labour Relations Court
19 May 2023
5,375 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled three Utalii College employees were unfairly fired over shifting fraud allegations, awarding them notice pay and compensation.

What this practically means

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Executive summary

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Three consolidated causes were filed by former employees of Kenya Utalii College challenging summary dismissals in February 2016 following investigations into alleged fraud and loss of goods. Each claimant sought declarations that the terminations were unlawful and unfair, terminal benefits, compensatory damages, interest and costs; the college filed a defence and counterclaim against Daniel Tungo for Kshs 2,256,722.31 as liquidated damages for goods allegedly paid for but never delivered. The court framed two issues: whether the claimants were unfairly dismissed, and what remedies were due. On the evidence, the court found the accusations shifting - loss figures ranged from Kshs 60,506.99 to over Kshs 2.6 million, alleged syndicates were never named, three of seven implicated employees were singled out for dismissal, and passwords of Peter Ngugi had been shared with others never dismissed. No disciplinary hearing complying with section 41 of the Employment Act was conducted in the strict sense. The court held the terminations unfair for want of substantive justification and procedural fairness, awarding each claimant one month's salary in lieu of notice and five months' salary as compensation: Kshs 378,000/- for Ngetich, Kshs 262,170/- for Tungo and Kshs 143,910.18 for Wambui, with costs and interest from judgment. Claims for severance, leave, house and commuter allowances were declined as unproved. The counterclaim failed for want of proof of computation, with each party bearing its own costs of the counterclaim.

Key legal issues

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01

Whether the claimants' summary dismissals were fair in substance and procedure

Holding

Terminations were unfair for want of substantive justification and procedural fairness

Reasoning

The respondent's figures for alleged losses kept changing (from Kshs 60,506.99 to Kshs 2,678,624/- to Kshs 711,000/-), the alleged syndicates were never named, only three of seven implicated employees were dismissed, and no proper disciplinary hearing under section 41 was held - the hearings were presided over by the accusers and enhanced charges drew dismissal without further hearing.

p. 9
02

Whether the claimants were accorded a fair hearing before termination

Holding

No; procedural fairness under section 41 was violated

Reasoning

Claimants were given show cause letters with shifting accusations, appeared before committees whose members were the accusers, and were dismissed on enhanced charges without any further hearing. Section 41 requires a hearing in mandatory terms. The claimants were never charged in any criminal court.

p. 9
03

Whether the respondent's counterclaim for Kshs 2,256,722.31 was proved

Holding

Not proved and dismissed

Reasoning

The claim was framed as liquidated damages, which require specific proof demonstrating how the sum was computed. The respondent led no documentary or testimonial evidence establishing the computation, and inconsistencies pervaded its evidence.

p. 11
04

What remedies the claimants are entitled to

Holding

One month's salary in lieu of notice plus five months' salary as compensation for each claimant; other heads declined for want of proof

Reasoning

Having found the terminations unfair, the court awarded notice pay and compensation equivalent to five months' salary per claimant under section 49. Claims for severance (no redundancy), unpaid leave, house and commuter allowances and acting allowance were declined as unproved.

p. 10

Legal principles established

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  • An employer must prove both valid reason and fair procedure under sections 41, 43 and 45 of the Employment Act; failure of either renders termination unfair
  • The employer need only prove reasons it genuinely believed to exist on a balance of probability, and the reasonableness of dismissal falls within a band of reasonable responses
  • An employee facing disciplinary action must be given adequate opportunity to respond to charges before action is taken

Court orders

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  1. 1.Award to Raymond Ngetich (Cause No. 266 of 2016): one month salary in lieu of notice Kshs 63,000 plus compensation of 5 months' salary Kshs 315,000; total Kshs 378,000 with costs and interest at court rates from date of judgment till full payment
  2. 2.Award to Daniel Tungo (Cause No. 345 of 2016): one month salary in lieu of notice Kshs 43,693 plus compensation of 5 months' salary Kshs 218,475; total Kshs 262,170 with costs and interest at court rates from date of judgment till full payment
  3. 3.Award to Winnie Wambui (Cause No. 595 of 2016): one month salary in lieu of notice Kshs 23,985.03 plus compensation of 5 months' salary Kshs 119,925.15; total Kshs 143,910.18 with costs and interest at court rates from date of judgment till full payment
  4. 4.Dismissal of the respondent's counterclaim of Kshs 2,256,722.31 against Daniel Tungo
  5. 5.Each party to bear its own costs of the counterclaim

Authorities

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Legislation

  • Employment ActCap 226
  • Employment Actsections 41, 43, 45 and 47(5)
  • Penal Codenull
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticles 159(2)(d) and 48
  • Civil Procedure ActSection 1B

Cases cited (4)

  • Donald Odeke versus Fidelity Security Ltd
    Cause No. 1998 of 2011
  • Abisolom Ajusa Magomere versus Kenya Nut Company Limited
    Cause No. 2525 of 2012 [2014] eKLR
  • Kenya Revenue Authority vs Reuwel Waithaka Gitahi & 2 others
    [2019] eKLR
  • Leyland UK Ltd versus Swift
    1981 IRLR
Jurisdiction invoked
Employment Act, Cap 226 (sections 41, 43, 45 and 47(5))

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, "Wambui & 4 others v Kenya Utalii College (Employment and Labour Relations Cause 595, 345 & 266 of 2016 (Consolidated)) [2023] KEELRC 1270 (KLR)", Case Analysis (2023). Cause No. 595 of 2016 (Consolidated with Causes Nos. 266 of 2016 and 345 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1270/eng@2023-05-19

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