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ELRCPartially AllowedPetition dated 23rd June 2023· [2024] KEELRC 358 (KLR)

Ogola v Machakos University (Employment and Labour Relations Petition E105 of 2023) [2024] KEELRC 358 (KLR)

Employment and Labour Relations Court
23 February 2024
AMAnna Ngibuini Mwaure
4,938 words in judgment
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The bottom line

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A Kenyan court ruled that a university wrongly fired a professor over a personal email, awarding him eight months' salary as compensation.

What this practically means

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Executive summary

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The petitioner, a Professor Grade 15 at Machakos University who had served as Acting Deputy Vice Chancellor (Administration, Planning and Finance) from 1st February 2022 until his term ended on 31st July 2022, challenged his termination following disciplinary proceedings. The charges arose from two memos he emailed to the substantive Vice Chancellor while she was on leave, including one purporting to appoint him to stand in for her. He was served a show cause letter dated 5th August 2022, appeared before the Senior Staff Disciplinary Committee on 30th August 2022 with union representation, and was terminated on 12th September 2022. His appeal to the Senior Staff Appeals Committee was dismissed. The petitioner alleged lack of investigation, bias, and violation of his constitutional rights. The respondent maintained the offences of insubordination, incitement and abuse of office were established and the procedure lawful. The court framed three issues: whether investigations were conducted, whether constitutional rights were violated, and whether fair procedure was followed. It held that a personal email to a team leader could not constitute gross misconduct under section 44(4) of the Employment Act, that no investigations were conducted and no valid reasons given, breaching Article 41 of the Constitution and section 45 of the Employment Act. Procedure under section 41 was, however, substantially followed. The court declared the termination of the petitioner's position as professor illegal and unlawful, refused reinstatement (Prayer A) and Prayer C because his acting term had expired, awarded compensation of eight months' salary (Kshs 3,334,416), declined claims for allowances, and awarded costs to the petitioner.

Key legal issues

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01

Whether the respondent conducted investigations before summary dismissal

Holding

The respondent failed to conduct investigations and gave no valid reasons; the termination lacked substantive justification

Reasoning

The termination letter provided no specific reasons. The charges arose from a personal email sending two memos to the substantive Vice Chancellor while on leave, which the court held could not amount to gross misconduct. The HR Manual required the supervisor to institute an investigation, and no evidence showed the petitioner was a habitual offender. For a senior, long-serving employee, proper investigations and valid reasons were required before summary dismissal.

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02

Whether the petitioner's constitutional rights were violated

Holding

The respondent breached Article 41 of the Constitution by summarily dismissing the petitioner without valid reasons

Reasoning

The court invoked Articles 41 (fair labour practices), 50 (fair hearing) and 48 (access to justice), holding that courts must intervene in disciplinary procedures that offend rules of natural justice and result in injustice. The dismissal without valid reasons breached Article 41.

p. 9
03

Whether the respondent followed fair procedure

Holding

Procedure under section 41 of the Employment Act was substantially followed, but the respondent failed to give valid reasons under section 45

Reasoning

The petitioner was served a show cause letter, invited to and attended a disciplinary hearing, was represented, and had a right of appeal which he exercised. However, the minutes were not shown to have been availed to him, and the dismissal failed for lack of valid reasons contrary to section 45 of the Employment Act.

p. 9

Legal principles established

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  • Summary dismissal requires proper investigations and valid reasons; a personal email to a team leader does not constitute gross misconduct under section 44(4) of the Employment Act
  • Termination must satisfy both substantive justification and procedural fairness

Court orders

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  1. 1.Declaration that the petitioner's termination as Professor Grade 15 in the School of Education was illegal and unlawful
  2. 2.Refusal of prayer A (reinstatement-related relief) of the petition
  3. 3.Refusal of prayer C
  4. 4.Award of compensation equivalent to 8 months' salary, Kshs 416,802 x 8 = Kshs 3,334,416, for unlawful termination
  5. 5.Costs of the petition awarded to the petitioner

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 41, 47, 48, 50, 159(2)(d)
  • Employment ActSections 41, 44(4)(d) and (g), 44(4)(a-g), 45
  • Fair Administrative Actions Actgeneral
  • Universities Actgeneral
  • Data Protection Actgeneral
  • Machakos University Human Resource Policy and Procedure Manual 2019Clauses 27.0(1), 27.3.2(h), 35.0, Part 27.0(b)
  • Public Service Commission Discipline Manual of the Public Service 2016Clauses 4.6(a), (d) and (e), Part 5.0
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (10)

  • Fredrick Odongo Owegi v Cfc Life Assurance Limited
    [2014] eKLR
  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    [2014] eKLR
  • Maasai Mara University & another v Misia Manuguti Kadenyi
    [2021] eKLR
  • Kamau v Kenya Accreditation Service (Petition E053 of 2021)
    [2021] KEELRC 8 (KLR)
  • Misia Manuguti Kadenyi v Maasai Mara University & 3 others
    [2018] eKLR
  • Anarita Karimi Njeru v Republic
    [1979] KLR 154
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR
  • Lady Justice Kalpana H. Rawal & 2 others v Judicial Service Commission & 6 others
    [2016] eKLR
  • Christoper Kariuki Gikonyo v Cargo Services Centre E. Africa B U T/a Swissport Cargo Services Kenya
    2015
  • Walter Ogal Onuro v Teachers Service Commissions
    Cause No 955 of 2011
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unconstitutional and unfair termination of employment; Articles 41, 47, 48 and 50 of the Constitution and the Employment 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, "Ogola v Machakos University (Employment and Labour Relations Petition E105 of 2023) [2024] KEELRC 358 (KLR)", Case Analysis (2024). Petition dated 23rd June 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/358/eng@2024-02-23

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