Ndinyo & another v The Kenya Utalii College (Cause 2515 of 2017) [2023] KEELRC 1854 (KLR)
The bottom line
#The Employment Court in Kenya ruled two university staff were unfairly dismissed over process failures, winning partial compensation but not reinstatement.
What this practically means
#Executive summary
#Key legal issues
#Whether there were valid and fair reasons for termination
The Respondent established valid and fair reasons on a preponderance of probabilities, including contracts signed contrary to award letter terms and Section 135(3) PPAD and unauthorised reallocation of development funds to recurrent expenditure.
The summary dismissal letter itself did not state reasons, but the show cause letters and evidence disclosed grounds: contracts signed outside prescribed periods, payment without Council consultation, reallocation of development funds and unauthorised hiring. Under Section 43(2) the employer need only prove reasons it genuinely believed to exist, tested by reasonableness per British Leyland v Swift. The Auditor General's qualified opinion corroborated the fund reallocation. Substantive fairness was thus made out.
Whether the termination procedure was fair under Section 41 of the Employment Act
The procedure was unfair: the hearing invitation lacked an agenda, did not inform the Claimants of the right to be accompanied or call witnesses, and no authentic minutes or evidence of the hearing were produced.
Although notices to show cause were issued and responded to and a hearing was convened, the interdiction letter promised investigations that never produced a report, no investigation committee was established, the invitation omitted the agenda and the right to accompaniment, and no authenticated minutes of the 27th November 2017 hearing were availed. The photocopied unauthenticated papers had no probative value, so the Respondent failed to demonstrate a fair process consistent with Section 41.
Entitlement to reinstatement
Reinstatement refused as it is statutorily time-barred, being unavailable 3 years after termination.
Section 12(3)(vii) of the ELRC Act confines reinstatement to 3 years from termination. Termination occurred on 15th December 2017 and judgment was delivered in 2023, so the remedy was unavailable on this ground alone, following Joshua Rodney Marimbah v Kenya Revenue Authority.
Entitlement to compensation and confirmation as Financial Controller
Compensation awarded at 2 months' gross salary given substantial employee contribution to the termination; confirmation as Financial Controller declined as appointment is the employer's prerogative.
Under Section 49(1)(c) read with Section 49(4), the court considered length of service (about 10 years and 7 years), the wish to continue in employment, and the Claimants' substantial contribution to their own dismissal, fixing compensation at 2 months' gross salary. The prayer for confirmation was declined because appointment and promotion are employer prerogatives and no unfair or discriminatory treatment was demonstrated.
Legal principles established
#- For a termination to pass the fairness test it must be both substantively justifiable and procedurally fair.
- The employer need only prove reasons it genuinely believed to exist, on a balance of probability, under Section 43 of the Employment Act.
- Section 41 of the Employment Act prescribes a mandatory pre-termination procedure including explanation of grounds and the right to be accompanied.
- Reinstatement under Section 12(3)(vii) of the ELRC Act is only available within 3 years of termination.
Court orders
#- 1.Declaration that termination of the Claimants' employment was unfair
- 2.Payment of unpaid basic salary during interdiction (balance of basic salary only)
- 3.Equivalent of two (2) months gross salary as compensation under Section 49(1)(c) of the Employment Act
- 4.Costs of the suit to the Claimants
- Jurisdiction invoked
- Employment and Labour Relations Court Act, 2011, Section 12 (reference to Section 12(3)(vii) on reinstatement)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndinyo & another v The Kenya Utalii College (Cause 2515 of 2017) [2023] KEELRC 1854 (KLR)", Case Analysis (2023). Cause No 2515 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1854/eng@2023-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.