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ELRCPartially AllowedELRC Petition E097 of 2021· [2024] KEELRC 1741 (KLR)

Sankale v Masai Mara University; Transparency International Kenya & 2 others (Interested Parties) (Employment and Labour Relations Petition E097 of 2021) [2024] KEELRC 1741 (KLR)

Employment and Labour Relations Court
5 July 2024
6,432 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled Masai Mara University illegally fired an accountant for exposing corruption, awarding him 12 months' salary.

What this practically means

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Executive summary

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The Petitioner, formerly an Assistant Internal Auditor and later Senior Accountant at Masai Mara University, blew the whistle on suspected embezzlement of university funds publicly aired on Citizen Television on 1st September 2019 ('the Mara Heist'), leading to the interdiction and charging of several officials, including the Vice Chancellor. He alleged a subsequent campaign of intimidation, hostile redeployments, pressure to expunge findings from an internal audit report, and eventual summary dismissal on 17th June 2021 on vague, unparticularised grounds, which he contended was retaliation for his whistleblowing. He sought declarations of violations of Articles 28, 29, 41, 47, 50 and 236 of the Constitution, protection under section 65 of the Anti-Corruption and Economic Crimes Act and section 21 of the Bribery Act, reinstatement or 12 months' compensation, and damages. The Respondent maintained it was exercising its right to hold an employee accountable for conduct tainting the university's image and denied retaliation, arguing the Court lacked jurisdiction and that the suit was sub judice a dismissed Nakuru cause. The Court framed three issues and held that the Petitioner was entitled to whistleblower protection; that his dismissal was substantively and procedurally unfair since no valid grounds were substantiated and no warning, show-cause letter or disciplinary hearing preceded it, with the ten-month delay evidencing retaliatory intent to silence him; and that reinstatement was unavailable due to irretrievable breakdown of the relationship and the position being filled. The Court awarded the maximum 12 months' salary as compensation (Kshs. 3,100,716/=), a certificate of service, costs and interest, subject to taxes and statutory deductions, and rejected the claim for damages for continuous injury.

Key legal issues

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01

Whether the Petitioner was entitled to whistleblower protection

Holding

Yes. The Petitioner was recognised as a whistleblower following the televised 'Mara Heist' expose and was entitled to protection from retaliation under ACECA s.65, Bribery Act s.21 and the UN Convention Against Corruption as incorporated by Article 2(6) of the Constitution.

Reasoning

The Court found the Respondent itself acknowledged the Petitioner's whistleblowing role, even promoting him to Acting Chief Internal Auditor. CID correspondence referencing interference of witnesses at the university showed the whistleblower was targeted. International conventions ratified by Kenya form part of Kenyan law, reinforcing the protective framework.

p. 11
02

Whether the summary dismissal was unfair and retaliatory

Holding

Yes. The dismissal was both substantively and procedurally unfair and the 10-month delay from the September 2020 meeting to the June 2021 dismissal reasonably pointed to retaliation for whistleblowing.

Reasoning

The Respondent failed to substantiate the grounds of gross misconduct under sections 43 and 47(5). No warning letter, show-cause letter or disciplinary hearing was issued; the 1st September 2020 meeting was not a disciplinary hearing. Reliance on section 44(4) failed because the alleged gross misconduct was not proved. The Court applied Janet Nyandiko and Macha Isunde on mandatory section 41 compliance.

p. 12
03

Whether reinstatement was available

Holding

No. Reinstatement was refused because the relationship had irretrievably broken down and the Petitioner's position had been filled.

Reasoning

Although reinstatement is available under section 49(3)(a), the Petitioner had tendered a resignation which the Respondent neither accepted nor acknowledged, and the Respondent deposed that the position had since been filled. Compensation was the appropriate remedy.

p. 13
04

Jurisdiction and abuse of process objections

Holding

Jurisdiction was upheld because an employer-employee relationship was not disputed; the sub judice/abuse objection failed because the Nakuru suit had been dismissed and its decision was not placed before the Court.

Reasoning

The Respondent's objection that the Court could not adjudicate corruption matters was set aside as there was no dispute that the claim arose from employment. The abuse-of-process argument failed because the Respondent could have raised it earlier and the Nakuru decision was never exhibited.

p. 11

Legal principles established

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  • A whistleblower is entitled to protection from retaliation under section 65 of the Anti-Corruption and Economic Crimes Act, 2003 and section 21 of the Bribery Act, 2016
  • Termination must satisfy both substantive and procedural fairness, and even summary dismissal must comply with section 41 of the Employment Act
  • An employer bears the burden of proving valid and fair reasons for dismissal under sections 43 and 47(5) of the Employment Act; unsubstantiated grounds cannot sustain a dismissal
  • Dismissing an employee for whistleblowing offends the national values of accountability and prudent use of public funds and warrants the maximum compensation under section 49 of the Employment Act

Court orders

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  1. 1.Damages for unfair termination of 12 months' salary: Kshs. 3,100,716/= (12 x 258,393/=)
  2. 2.Issuance of a certificate of service to the Petitioner
  3. 3.The award shall be subject to taxes and statutory deductions
  4. 4.Costs and interest of the suit
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction founded on the employer-employee relationship and constitutional labour rights (Articles 41 and 236 of the Constitution)

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, "Sankale v Masai Mara University; Transparency International Kenya & 2 others (Interested Parties) (Employment and Labour Relations Petition E097 of 2021) [2024] KEELRC 1741 (KLR)", Case Analysis (2024). ELRC Petition E097 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1741/eng@2024-07-05

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