Mwala v Aga Khan University (Cause 1437 of 2018) [2023] KEELRC 2055 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Substantive justification for termination
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
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).
Procedural fairness
Termination unlawful; no notification and hearing as required by Section 41 of the Employment Act
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.
Constitutional violation of dignity
The Dean's and VP HR's email exchanges were derogatory, insulting and humiliating, infringing Article 28; Respondent vicariously liable
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.
Reinstatement
Refused; not practicable, not exceptional, and outside the three-year window in Section 12(3)(vii) ELRC Act
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.
Anticipatory earnings for remainder of contract
Refused; claim for anticipatory benefits not anchored in law
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.
Legal principles established
#- 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
#- 1.A declaration that the Claimant's termination from employment by the Respondent was unfair and unlawful
- 2.Compensatory damages of Kshs 1,713,120.00, equivalent to 12 months of gross salary
- 3.Damages of Kshs 2,000,000.00 for violation of the constitutional right to dignity
- 4.Total award of Kshs 3,713,120.00
- 5.Interest on the total award at court rates from the date of judgment until payment in full
- 6.Costs of the suit to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court Act, Section 12 (original employment jurisdiction; Employment Act, Sections 41, 43, 45 and 49)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.