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ELRCDismissed· [2023] KEELRC 2340 (KLR)

Okun v Kenyatta University (Cause 363 of 2019) [2023] KEELRC 2340 (KLR)

Employment and Labour Relations Court
28 September 2023
MMM. MBARŨ
8,791 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, a lecturer and examinations coordinator at Kenyatta University promoted to permanent and pensionable terms in 2013, was summarily dismissed on 30 May 2019 following allegations that he solicited sexual favours from a female student in exchange for marks in a supplementary examination in HMB 230 Medical Biochemistry. He sued for declarations of unfair termination and discrimination, constitutional compensation of over Ks. 80 million for 34 years, damages, 12 months' salary compensation, and alternatively reinstatement, severance pay and service charge. The respondent maintained that a trap mounted by its security officers recovered examination materials in a Ruiru hotel room booked by the claimant with the student, that he and his union (UASU) declined invitations to the Senior Board of Discipline on 7 and 23 May 2019 despite particulars being supplied, and that the hearing proceeded in his absence with a right of appeal unused. The court framed four issues: unfairness of termination, unfair labour practices, discrimination, and remedies. It found the claimant's handling of the examination-security breach - following the student off-campus instead of reporting within 24 hours - was a direct abdication of duty justifying summary dismissal under Sections 44(3) and (4) of the Employment Act, and that due process was adhered to since an employee who squanders the chance to be heard cannot later claim unfairness. Discrimination and unfair labour practice claims lacked merit. Severance pay applies only to redundancy and no constitutional violation was found. The claim was dismissed in its entirety with each party bearing its own costs, and the file returned to the ELRC Nairobi Registry.

Key legal issues

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01

Whether the summary dismissal was substantively justified

Holding

Justified - the claimant abdicated his duty by following the student outside the university to retrieve examination materials instead of reporting the security breach as the examination policy required.

Reasoning

The claimant, as examinations coordinator, was aware examination materials must be secured and any breach reported within 24 hours. A student grabbed and walked away with examination scripts in his office. Instead of reporting to security, he arranged to meet the student outside the premises, at a medical centre and a Ruiru lounge, where security recovered examination materials in the room. This conduct amounted to gross misconduct justifying summary dismissal under Section 44.

p. 13
02

Whether the disciplinary process accorded the claimant a fair hearing

Holding

Due process was adhered to; the claimant was invited and refused to attend, squandering his chance to be heard.

Reasoning

Section 41(2) requires an employer to hear and consider representations before summary dismissal. The claimant was invited to hearings on 7 and 23 May 2019 with particulars supplied; his union was invited per the CBA. He and the union demanded documents and declined to attend. Relying on Paul Wanyangah and Energy Regulatory Commission v Sigura Otido, an employee who squanders the hearing opportunity cannot later claim procedural unfairness. The alleged invalidity of the committee via Prof. Fatuma Chege failed because the interim order relied on had lapsed on 14 February 2019.

p. 15
03

Whether there were unfair labour practices and discrimination

Holding

No - the disciplinary process was focused on the single incident of misconduct; claims of victimisation for union activities, Sacco involvement, housing harassment and police summons were unrelated diversions.

Reasoning

The court held the matters relied on by the claimant - housing, Kenvasity Sacco, police summons over student unrest - were unrelated to his personal misconduct. Union activities are protected under Section 46 of the Employment Act, but the dismissal rested on the sexual-harassment incident and mishandling of examination materials. To infer discrimination in the summary dismissal was without merit.

p. 16
04

Whether the remedies sought should issue

Holding

No remedies issued - the claim was dismissed in its entirety with each party bearing own costs.

Reasoning

Having found the termination for good cause with due process, constitutional compensation, damages for discrimination, 12 months' salary compensation, reinstatement, severance pay and service charge were all unavailable. Severance attaches only to redundancy; service charge is unavailable where summary dismissal is justified; no discrimination was found so constitutional damages were unavailable.

p. 16

Legal principles established

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  • An employer employing twenty or more employees must issue a policy statement on sexual harassment under Section 6(2) of the Employment Act; absence of such a policy exposes the employer but does not preclude a finding of sexual harassment.
  • An employee who squanders the opportunity to attend a disciplinary hearing cannot later claim there was no due process.
  • A sexual-harassment case against a student can be inferred from power relations between lecturer and student even absent an employer policy statement.

Court orders

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  1. 1.The claim is dismissed in its entirety
  2. 2.Each party to bear its own costs
  3. 3.The file shall be returned to the ELRC Nairobi Registry
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (Industrial Court Act; Employment Act; Articles 41, 47 of the Constitution invoked in the pleadings)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Okun v Kenyatta University (Cause 363 of 2019) [2023] KEELRC 2340 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2340/eng@2023-09-28

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