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ELRCPartially AllowedEmployment and Labour Relations Cause (Statement of Claim dated 2nd September 2020)· [2023] KEELRC 2685 (KLR)

Makunjo v Technical University of Kenya (Cause E396 of 2021) [2023] KEELRC 2685 (KLR)

Employment and Labour Relations Court
27 October 2023
SRStella Rutto
3,936 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled the Technical University unfairly fired an employee because it couldn't prove he committed the alleged fraud, awarding him five months' salary.

What this practically means

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Executive summary

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The Claimant, formerly employed by the Technical University of Kenya, was interdicted on 22nd May 2017 and summarily dismissed by letter dated 1st March 2018 over allegations that he fraudulently receipted a student's fees, manipulating a Kshs 1,000/= deposit to appear as Kshs 156,500/=. He sued for declarations of wrongful termination, suspension-period earnings, earnings to retirement, provident fund benefits, general damages, costs and interest. The Respondent defended the dismissal as substantively and procedurally fair, having followed its disciplinary process and appeal mechanism. The Court framed three issues: justification for termination, procedural fairness, and entitlement to reliefs. On substantive fairness, the Court found the evidence inconclusive: while the receipt bore the Claimant's name as cashier, the system printout for the same receipt number bore Susan Simiyu's name, which the Respondent never explained, and the Claimant's assertion that he printed the receipt at his superior's request went uncontroverted. The dismissal therefore failed the Section 45(2) threshold and was substantively unfair. Procedurally, however, the Claimant was interdicted, notified, heard by a disciplinary committee and allowed an appeal, satisfying Section 41. The Court awarded compensatory damages of five months' gross salary (Kshs 280,770.00) with interest, declared the Claimant entitled to his provident fund benefits, declined claims for suspension-period salary and retirement-age earnings as unsupported and anticipatory respectively, and awarded costs to the Claimant. Judgment was delivered at Nairobi on 27th October 2023 by Stella Rutto, J.

Key legal issues

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01

Substantive fairness of the termination

Holding

The dismissal was substantively unfair as the Respondent did not prove a valid and fair reason

Reasoning

Section 43(1) and 45(2) of the Employment Act require the employer to prove valid reasons. The receipt bore the Claimant's name but the system printout for the same receipt number showed Susan Simiyu as the user. The Respondent never explained this discrepancy nor the role Simiyu played, nor did it controvert the Claimant's claim that he printed the receipt at the Chief Accountant's request. The evidence was therefore inconclusive.

p. 6
02

Procedural fairness of the termination

Holding

The termination was procedurally compliant

Reasoning

The Claimant was interdicted, informed of the allegations, invited to a disciplinary hearing by letter dated 23rd May 2017, advised of his right to be accompanied by a witness, and attended the hearing. He was also afforded an appeal, which the Respondent received despite being filed out of time. This met the minimum requirements of Section 41 of the Employment Act.

p. 7

Legal principles established

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  • An employer must prove the reasons for termination, failing which the termination is unfair
  • Where evidence leaves doubt as to which employee committed the impugned act, the employer should undertake further inquiry before dismissal
  • Claims for earnings up to retirement are anticipatory and not recoverable

Court orders

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  1. 1.A declaration that the Claimant's termination by the Respondent was substantively unfair
  2. 2.The Claimant is awarded compensatory damages equivalent to five (5) months of his gross salary being Kshs 280,770.00
  3. 3.Interest on the damages at Court rates from the date of Judgment until payment in full
  4. 4.The Claimant is entitled to be paid his benefits from the Provident Fund
  5. 5.The Respondent shall bear the costs of this claim

Authorities

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Legislation

  • Employment ActSection 43(1)
  • Employment ActSection 45(2)
  • Employment ActSection 45(2)(a) and (b)
  • Employment ActSection 45(2)(c)
  • Employment ActSection 41(1)
  • Employment ActSection 47(5)
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B

Cases cited (6)

  • Kenya Revenue Authority vs Reuwel Waithaka & 2 Others
    (2019) eKLR
  • Judicial Service Commission vs Gladys Boss Shollei & another
    (2014) eKLR
  • Pius Machafu Isindu vs Lavington Security Guards Limited
    (2017) eKLR
  • D K Njagi Marete vs Teachers Service Commission
    [2020] eKLR
  • Elizabeth Wakanyi Kibe v Telkom Kenya Ltd
    [2014] eKLR (Civil Appeal No. 25A of 2013)
  • Engineer Francis N. Gachuri v Energy Regulatory Commission
    [2013] eKLR (Industrial Cause No. 203 of 2011)
Jurisdiction invoked
Original jurisdiction under the Employment Act and the Employment and Labour Relations Court Act

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, "Makunjo v Technical University of Kenya (Cause E396 of 2021) [2023] KEELRC 2685 (KLR)", Case Analysis (2023). Employment and Labour Relations Cause (Statement of Claim dated 2nd September 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2685/eng@2023-10-27

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