Otieno v Kabarak University (Cause E047 of 2021) [2024] KEELRC 2253 (KLR)
The bottom line
#Kabarak University must pay a former lecturer Kshs2.6 million because it fired him for breaking a rule that did not exist in his contract.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissal was substantively fair
The dismissal was substantively unfair because the staff handbook applicable to the claimant contained no provision prohibiting a second job, and clause 6.3.8(ix) invoked by the respondent did not exist in that handbook; the 2018 handbook alleged to contain the prohibition was never availed, and the June 2020 manual could not apply retroactively.
The court identified the operative handbook as the one signed at appointment in 2016, which contained no bar on outside employment. Clause 6.3.8(ix) cited in the charges did not exist in it. The respondent's claim of a 2018 handbook was unsupported by any document, and the memo introducing a new manual dated 5th June 2020 postdated the dismissal and could not apply retroactively. The charges therefore referred to misconduct that did not exist.
Whether the dismissal was procedurally fair
Although a show-cause letter was issued and a hearing held, the failure of records and the dishonest handling of the appeal meant the process was unfair; in any event lack of substance could not be cured by procedure.
The minutes and record of the disciplinary hearing were not availed. More significantly, the chair of council purported to have dismissed the appeal by a letter dated 29th January 2020, yet the respondent on 3rd February 2020 was still seeking more time to consider the appeal — an impossibility demonstrating a casual and dishonest handling of the appeal. The court held the dismissal unfair both in substance and procedure.
Whether the claimant was discriminated against on the ground of ethnicity contrary to Article 27
No discrimination was proved; no evidence showed the handbook was manipulated to target the claimant specifically.
The claimant pleaded that the staff handbook was manipulated to his detriment because of his ethnicity. The court found the 2016 handbook applied to him, but no evidence established that it was specifically manipulated to disadvantage him. Ethnicity being inborn, if the respondent found it undesirable the claimant would not have been engaged in the first place. Prayers (e) and (f) were denied.
Appropriate compensation
Ten months' gross salary (Kshs1,198,820/=) awarded rather than the maximum twelve months, considering the claimant already held another job and was highly qualified in a marketable field.
The claimant sought the maximum 12 months' compensation under Section 49(1)(c) of the Employment Act. The court noted he already held a job with Karatina University at the time of dismissal and was highly qualified in a marketable field, so his services were readily required elsewhere. Weighing these factors against the unfairness found, ten months' gross salary was considered fair and adequate.
Legal principles established
#- The staff handbook applicable to an employee is the one in operation when the employee was appointed; a purported handbook not availed in evidence is a mere allegation
- Where a disciplinary process lacks substance, procedural propriety cannot cure it
- Alleged constitutional violations must be specifically pleaded and proved
Court orders
#- 1.A declaration that the dismissal of the claimant by the respondent was wrongful, unfair, and unlawful
- 2.The claimant awarded a total of Kshs2,608,668/= (compensation Kshs1,198,820/=; three months' salary in lieu of notice Kshs359,646/=; leave pay Kshs191,811/=; passage & baggage allowance Kshs38,000/=; part-time pay Kshs820,391/=), subject to statutory deductions
- 3.Costs of the cause and interest to the claimant
- 4.The respondent to issue and deliver a certificate of service to the claimant in accordance with Section 51 of the Act
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and relevant labour law provisions (specific enabling provision not cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Otieno v Kabarak University (Cause E047 of 2021) [2024] KEELRC 2253 (KLR)", Case Analysis (2024). Cause No E047 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2253/eng@2024-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.