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ELRCPartially AllowedCause No 1437 of 2018· [2023] KEELRC 2055 (KLR)

Mwala v Aga Khan University (Cause 1437 of 2018) [2023] KEELRC 2055 (KLR)

Employment and Labour Relations Court
11 August 2023
7,048 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~28 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a nurse executive assistant over KSh 3.7 million after her employer failed to follow fair termination procedures and her dignity was violated.

What this practically means

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Executive summary

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The Claimant, employed as an Executive Assistant from 2 November 2009, was suspended on 4 July 2016 over allegations of sharing confidential information and terminated by letter dated 8 March 2018 on grounds of an irretrievable breakdown in the employment relationship. She claimed the termination was a constructive scheme orchestrated by the new Dean, Prof. Sharon Brownie, and the Vice President, Human Resources, whose email exchanges she read as her supervisor's delegate, and sought reinstatement, contractual earnings, aggravated and constitutional damages. The Respondent maintained she covertly monitored the Dean's emails and leaked them to Uganda, justifying termination on trust and confidence grounds under contractual notice provisions. The court framed three issues: fairness of termination, constitutional violation, and reliefs. It found the Respondent failed to prove the reason for termination to the standard of Sections 43(1) and 45(2) of the Employment Act, since the investigation outcome was never produced and the email access was expressly authorized by the Dean's email of 28 September 2015. Procedurally, no Section 41 notification and hearing occurred, and contractual notice could not displace those mandatory minimum standards. The emails describing the Claimant as useless and plotting her removal were held derogatory and humiliating, infringing her Article 28 right to dignity, for which the Respondent was vicariously liable. Reinstatement was refused as impracticable and time-barred under Section 12(3)(vii) of the ELRC Act; anticipatory earnings were also refused. The court awarded maximum compensatory damages of 12 months' gross salary (Kshs 1,713,120) and Kshs 2,000,000 in constitutional damages, with interest and costs to the Claimant.

Key legal issues

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01

Substantive justification for termination

Holding

Respondent failed to prove a valid and fair reason; the alleged breakdown was not substantiated as the investigation outcome was not produced and email access was authorized

Reasoning

The reason cited was irretrievable breakdown of the employment relationship. The court found no evidence of the outcome of the 2016 investigations, no proof that the Claimant shared the emails with a third party, and noted the 28 September 2015 email granting her delegate access to the Dean's inbox, calendar and contacts. The gaps in the Respondent's evidence meant the reason was not proved to the standard required by Section 43(1) read with Section 45(2).

p. 8
02

Procedural fairness

Holding

Termination unlawful; no notification and hearing as required by Section 41 of the Employment Act

Reasoning

There was no evidence that the Claimant was put on notice of contemplated termination on stated allegations and given an opportunity to respond, accompanied by a fellow employee or union representative. The court held that payment in lieu of notice under the contract could not displace the mandatory minimum standards of Section 41, following the Court of Appeal in Postal Corporation of Kenya v Andrew K. Tanui.

p. 9
03

Constitutional violation of dignity

Holding

The Dean's and VP HR's email exchanges were derogatory, insulting and humiliating, infringing Article 28; Respondent vicariously liable

Reasoning

The court sampled the emails describing the Claimant as useless and planning her removal, held they crossed the line from performance commentary into demeaning attacks on her person, and found they diminished her self-worth. It rejected the argument that the Claimant should have used the grievance procedure, as her grievance was against the very officers at the head of that procedure - a catch 22 situation.

p. 10
04

Reinstatement

Holding

Refused; not practicable, not exceptional, and outside the three-year window in Section 12(3)(vii) ELRC Act

Reasoning

Applying Section 49(4) factors, the court found reinstatement impractical given the breakdown of the relationship, and noted the termination took effect on 9 March 2018, more than three years before judgment, so reinstatement would contravene Section 12(3)(vii) of the Employment and Labour Relations Court Act.

p. 11
05

Anticipatory earnings for remainder of contract

Holding

Refused; claim for anticipatory benefits not anchored in law

Reasoning

Guided by D K Njagi Marete v Teachers Service Commission and the cases cited therein, the court held that no employment is permanent and a terminated employee can only get damages for unprocedural or unjustified termination, not payment for the unexpired contract period or anticipated future increments.

p. 12

Legal principles established

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  • Termination requires both substantive justification and procedural fairness under Sections 41, 43 and 45 of the Employment Act
  • Contractual notice provisions cannot oust the mandatory procedural requirements of Section 41 of the Employment Act
  • An employer is vicariously liable where its senior officials' derogatory communications infringe an employee's right to dignity under Article 28

Court orders

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  1. 1.A declaration that the Claimant's termination from employment by the Respondent was unfair and unlawful
  2. 2.Compensatory damages of Kshs 1,713,120.00, equivalent to 12 months of gross salary
  3. 3.Damages of Kshs 2,000,000.00 for violation of the constitutional right to dignity
  4. 4.Total award of Kshs 3,713,120.00
  5. 5.Interest on the total award at court rates from the date of judgment until payment in full
  6. 6.Costs of the suit to the Claimant

Authorities

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Legislation

  • Employment ActSections 41, 43, 45(2)(a) and (b), 49(3)(a), 49(4)
  • Employment and Labour Relations Court ActSection 12(3)(vii)
  • Constitution of Kenya, 2010Articles 28, 159(2)(d), 48
  • International Covenant on Civil and Political RightsPreamble
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (7)

  • Manuel Anidos vs Kinangop Wind Park Limited (In receivership) (2019) eKLR
    (2019) eKLR
  • Mbaka Nguru & another vs Jmaes George Rakwar (1998) eKLR
    (1998) eKLR
  • Postal Corporation of Kenya vs Andrew K. Tanui [2019] eKLR
    [2019] eKLR
  • M W K & another vs Attorney General & 3 others [2017] eKLR
    [2017] eKLR
  • D K Njagi Marete vs Teachers Service Commission [2020] eKLR
    [2020] eKLR
  • Elizabeth Wakanyi Kibe v Telkom Kenya Ltd [2014] eKLR (Civil Appeal No. 25A of 2013)
    [2014] eKLR; Civil Appeal No. 25A of 2013
  • Engineer Francis N. Gachuri v Energy Regulatory Commission [2013] eKLR (Industrial Cause No. 203 of 2011)
    [2013] eKLR; Industrial Cause No. 203 of 2011
Jurisdiction invoked
Employment and Labour Relations Court Act, Section 12 (original employment jurisdiction; Employment Act, Sections 41, 43, 45 and 49)

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, "Mwala v Aga Khan University (Cause 1437 of 2018) [2023] KEELRC 2055 (KLR)", Case Analysis (2023). Cause No 1437 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2055/eng@2023-08-11

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