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ELRCPartially AllowedELRC Cause No. 44 of 2015· [2024] KEELRC 1623 (KLR)

Obachi v Mount Kenya University (Cause 44 of 2015) [2024] KEELRC 1623 (KLR)

Employment and Labour Relations Court
26 June 2024
6,278 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

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Mount Kenya University must pay a former security guard over Kshs.717,000 because it sacked him without proof of misconduct or a fair hearing.

What this practically means

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Executive summary

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The claimant, employed by Mount Kenya University as a security guard on 22nd March 2011 and later appointed acting security officer, was dismissed on 9th August 2014 for gross misconduct arising from the loss of Decra iron sheets at the respondent's Milimani construction site in Nakuru. He claimed notice pay, acting allowances, house allowance, underpayments, overtime, rest day and public holiday pay, and compensation for unfair termination, totalling Kshs.719,817.40. The respondent maintained that the dismissal followed a fair disciplinary process for neglect of duty amounting to gross misconduct under Section 44 of the Employment Act. The court found the respondent failed to prove genuine and reasonable grounds for the disciplinary action under Section 43: no evidence showed the claimant was on duty when the iron sheets were removed, a gate pass indicated another guard was on duty, and no theft was reported to police or prosecuted. Procedurally, no show-cause letter was issued, no witnesses testified, and the claimant was not informed of his rights, offending Section 41 of the Employment Act, Section 4 of the Fair Administrative Actions Act and Articles 40, 41 and 50 of the Constitution. The dismissal was declared wrongful, unfair and unlawful. Reinstatement was denied as time-barred under Section 12(3)(vii) of the ELRC Act. The court awarded Kshs.717,936.80 comprising notice pay, salary differential, house allowance arrears, underpayments and compensation for the 15 unexpired months of the contract, plus a certificate of service, costs and interest. Overtime, rest day, public holiday and August 2014 claims were dismissed for lack of evidence or duplication.

Key legal issues

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01

Whether the dismissal was wrongful, unfair and unlawful

Holding

Yes - the dismissal failed both substantive and procedural fairness.

Reasoning

The respondent produced no evidence that the claimant was on duty on the day the iron sheets were removed, or that he authorised the removal. A gate pass showed another guard was on duty. No theft was reported to police and no one was charged. Procedurally, no show-cause letter was issued, no witnesses were called, and the claimant was not informed of his rights. The court therefore held the dismissal lacked both substantive grounds and fair procedure.

p. 10
02

Whether the claimant served as acting security officer and was entitled to the salary differential

Holding

Yes - the court found he was appointed acting security officer and awarded the claimed differential of Kshs.181,000.

Reasoning

Despite date anomalies in the appointment letters, the claimant signed correspondence as acting security officer without any rebuttal or retraction by the respondent, and the documents were produced without objection. The court found the claimant served in that role at a gross monthly pay of Kshs.20,000, forming the basis of the differential claim.

p. 11
03

What compensation is payable for the unfair dismissal

Holding

Compensation equivalent to the unexpired 15 months of the claimant's two-year contract at Kshs.20,000 per month, totalling Kshs.300,000.

Reasoning

The claimant was dismissed 15 months before the expiry of his contract running from 1st November 2013 to 31st October 2015. The court held the loss suffered was denial of the opportunity to work until expiry of the contract through effluxion of time, and awarded the gross salary he would have earned for those 15 months, subject to statutory deductions.

p. 11

Legal principles established

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  • An employer must demonstrate genuine and reasonable grounds for disciplinary action to the standard in Section 43 of the Employment Act.
  • Procedural fairness requires a show-cause letter, particulars of charges, and disclosure of the employee's rights including accompaniment by a co-worker or union representative.
  • Unfair termination requires both substantive justification and fair procedure, which are cumulative.

Court orders

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  1. 1.A declaration be and is hereby issued that the dismissal of the claimant by the respondent was wrongful, unfair, and unlawful.
  2. 2.Payment in lieu of notice Kshs.20,000.00
  3. 3.Salary differential/arrears Kshs.181,000.00
  4. 4.House allowance in arrears Kshs.109,575.55
  5. 5.Underpayments Kshs.107,361.25
  6. 6.Compensation for unfair termination equivalent to the remainder of the contract term Kshs.300,000.00 (grand total Kshs.717,936.80), subject to statutory deductions
  7. 7.The respondent shall issue and deliver to the claimant a certificate of service within 30 days of this judgment
  8. 8.The claimant is awarded costs of the cause and interest on the amount awarded at court rates till payment in full
  9. 9.All the other claims are denied and dismissed

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 44(4)(c)
  • Fair Administrative Actions ActSection 4
  • Employment and Labour Relations Court ActSection 12(3)(vii)
  • Constitution of KenyaArticles 40, 41 & 50
  • Gazetted Minimum Wages Orders

Cases cited (7)

  • Joshua Rodney Marimbah V Kenya Revenue Authority
    (2021) eKLR
  • Kenya Power & Lighting Company Limited V Aggrey Wasike
    (2017) eKLR
  • Pheoby Aloo Inyanga V Stockwell One Homes Management Limited & Another
    (2022) eKLR
  • Evans Kamadi Misango V Barclays Bank of Kenya Limited
    (2015) eKLR
  • Mary Chemweno V Kenya Pipeline Company Limited
    (2017) eKLR
  • Loice Otieno V Kenya Commercial Bank Limited
    (2013) eKLR
  • Walter Ogal Anuro V Teachers Service Commission
    (2012) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act 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, "Obachi v Mount Kenya University (Cause 44 of 2015) [2024] KEELRC 1623 (KLR)", Case Analysis (2024). ELRC Cause No. 44 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1623/eng@2024-06-26

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