Wekesa v Mount Kenya University (Petition 138 of 2016) [2024] KEELRC 538 (KLR)
The bottom line
#A Kenyan court ruled a professor's redundancy was a sham, awarding him over Kshs 6.8 million because the university never followed lawful termination procedures.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the termination
Termination was procedurally unfair under the Employment Act, the Fair Administrative Action Act and the Constitution; the petitioner on leave was given no notice of intended redundancy, no reasons and no consultation.
The petitioner was on extended leave and was 'slammed' with a termination letter on the date he was ready to resume duty. If redundancy was intended, section 40 required at least one month's notice to the employee and the labour office disclosing reasons and extent of redundancy. Consultations are integral to section 40(1)(c)-(g), anchored in section 4(3) of the Fair Administrative Action Act and article 47, and endorsed in the German School Society and Kenya Airways decisions. None occurred.
Substantive justification for termination
The respondent failed to establish valid reasons under sections 43, 45 and 47(5); the purported redundancy was a colourable exercise.
The respondent alternated between redundancy, regulatory non-compliance and the contractual termination clause; Prof Kerosi denied retrenchment while Lucy Maina asserted it. No positions were abolished and no departments merged, while the audit showed more staff were needed. The petitioner, one of only two PhD holders among 25 Law Lecturers, was terminated just 6 days into a 6-month moratorium. His claimed lack of qualifications was discredited, as he held a PhD in Law.
Whether the petitioner was qualified as Professor and Dean of Law
He was qualified; the allegation that he was a Professor of Sports Medicine and not Law was discredited by the respondent's own witness and his unchallenged biography.
The respondent's witness, Janet Kajwang', conceded that the highest qualification to teach Law is a PhD in Law and that the petitioner held it as of January 2016. The petitioner's book biography, confirming LL.B, LL.M and PhD in Law, was unchallenged in cross-examination and forms uncontroverted evidence. His promotions preceded the Commission for University Education guidelines of 2015, which could not apply retrospectively.
Constitutional violations
Violations found of articles 27, 28, 41 and 47 of the Constitution, read with sections 4, 5 and 40-47 of the Employment Act and the Fair Administrative Action Act.
Constitutional jurisdiction was upheld in the earlier Ruling by Ongaya J, allowing statutory, contractual and constitutional reliefs together. For every statutory breach there is an implicated constitutional violation. The abrupt, unexplained termination of an internationally acclaimed Professor, questioning his credentials and exposing him to pecuniary embarrassment, infringed his dignity under article 28 and equality under article 27.
Remedies
9 months' salary compensation plus coalesced constitutional damages of Kshs 3,000,000; severance recomputed at 15 days per complete year; aggravated and punitive damages refused.
Remedies must be fair, balanced and effective, guided by section 49 of the Employment Act, section 12(3) of the E&LRC Act and article 23. Constitutional remedies supplement statutory remedies where inadequate; here discrimination and dignity violations took the case beyond the 12-month statutory ceiling, but a multiplicity of damages would be unjust enrichment. The petitioner mitigated loss by securing alternative employment, justifying 9 rather than 12 months.
Legal principles established
#- Redundancy under section 40 of the Employment Act requires prior notice of intended redundancy to the employee (or union) and the labour office, disclosure of reasons and extent, and genuine consultation before the decision to terminate.
- A termination clause in a contract cannot by itself satisfy the substantive justification requirements of sections 43 and 45 of the Employment Act.
- Vacillation between different justifications for termination indicates the employer had no valid reason.
- Constitutional remedies in employment are supplemental and must not be disproportionate or punitive.
Court orders
#- 1.It is declared that termination of the petitioner's contract by the respondent was unfair and unlawful
- 2.It is declared that the respondent violated the petitioner's constitutional right to fair labour practices, the right to fair administrative action, the right to human dignity, and the right not to be discriminated against
- 3.The respondent shall pay to the petitioner balance of severance at Kshs. 709,442
- 4.The respondent shall pay balance of notice at Kshs. 45,645
- 5.The respondent shall pay balance of January 2016 salary at Kshs. 40,083
- 6.The respondent shall pay equivalent of 9 months' salary in compensation for unfair termination at Kshs. 3,060,000
- 7.The respondent shall pay coalesced damages for constitutional violations at Kshs. 3,000,000 (total award Kshs. 6,855,170)
- 8.Costs to the petitioner
- 9.Interest granted at court rate, from the date of Judgment, till payment is made in full
- Jurisdiction invoked
- Article 41, 47 and Chapter 4 of the Constitution of Kenya read with section 12(3) of the Employment and Labour Relations Court Act; jurisdiction on joinder of constitutional and statutory reliefs upheld in a Ruling dated May 11, 2018 [Ongaya J]
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Pktai & another v Cloudfactory Kenya Limited & another (Petition E006 of 2023) [2025] KEELRC 2574 (KLR)[2025] KEELRC 2574 (KLR)22 Sept 2025
- Mitsumi v Q-Sourcing Limited & another (Cause E1004 of 2024) [2025] KEELRC 2400 (KLR)[2025] KEELRC 2400 (KLR)29 Aug 2025
- Macharia v Registered Trustees of the Sisters of Mercy (Kenya) Mater Misericordiae Hospital (Cause 650 of 2020) [2025] KEELRC 1454 (KLR)[2025] KEELRC 1454 (KLR)16 May 2025applied
Cite this brief
#Cite this brief
Caselaw, "Wekesa v Mount Kenya University (Petition 138 of 2016) [2024] KEELRC 538 (KLR)", Case Analysis (2024). Petition dated November 7, 2016 (filed November 11, 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/538/eng@2024-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.