Akama v Kisii University & 2 others (Cause E048 of 2024) [2025] KEELRC 109 (KLR)
The bottom line
#Kisii University was ordered to pay its former Vice-Chancellor over KSh 2.1 million because it unfairly terminated him instead of honouring a contract clause letting him return as a professor.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether clause 31 of the employment contract dated June 2018 and executed on 28th January, 2019 is enforceable
- 2.Whether termination of the claimant's employment by the respondent was unfair or the employment contract lapsed by effluxion of time
- 3.Whether the claimant is entitled to the reliefs sought
Key legal issues
#Enforceability of clause 31 of the employment contract
Clause 31 was binding and enforceable; the 1st respondent was obliged to allow the claimant to revert as a full Professor upon his expressed willingness to serve.
The parties entered the contract willingly; no vitiating factor (misrepresentation, duress, mistake, undue influence) was pleaded or proved. The 1st respondent drafted the clause, copied from another university's template without domestication, and the contra proferentem rule applies against it. Unconstitutionality was alleged but not proved, and the authorities cited concerned statutes, not contract terms.
Whether implementation of clause 31 required Council approval or resolution
No Council resolution was required; the contract bound the parties directly and Council needed only to note the claimant's willingness to serve.
Since clause 31 was embodied in the contract, implementation did not depend on a Council resolution. The 73rd Council meeting did not dismiss the clause, and the purported letter of 3rd May 2023 was not proved inauthentic: the respondents' witnesses did not attend the meeting, adduced no evidence of forgery or want of authority, and a misdescription of the signatory's designation does not invalidate a letter.
Whether employment was unfairly terminated or lapsed by effluxion of time
The employment did not merely lapse; the 3rd respondent's letter of 10th July 2023 amounted to a termination that was unfair and unlawful under Section 45 of the Employment Act.
Fixed-term contracts ordinarily end on expiry (Ruth Gathoni Ngotho; Transparency International v Omondi), but clause 31 created a contractually enforceable promise of continued employment. The claimant expressed willingness to serve as early as December 2022, and the termination letter gave no substantive justification and followed no fair procedure.
Whether the claimant's dormant position at Moi University barred his claim
It did not; leave of absence resembles secondment and did not extinguish his right to enforce the Kisii University contract.
An employee on leave of absence is off the payroll and retains only the position, bound by the leave terms. The claimant's working at Kisii University would not amount to holding two public offices, and his reinstatement at Moi University did not affect his contractual rights against the 1st respondent.
Legal principles established
#- A party who signs a contract is bound by its terms absent fraud or misrepresentation, and the drafter cannot dispute the meaning of a clause it authored.
- An ambiguous contractual clause is construed against the drafter under the contra proferentem rule.
- Where clause 31 of a Vice-Chancellor's contract provides for reversion to a professorship, employment continues beyond the fixed term if the employee expresses willingness to serve.
- Termination without substantive justification and procedural fairness is unfair within section 45 of the Employment Act.
- An employee on leave of absence retains a dormant position and may sue to enforce a separate contract of employment; this is not holding two public offices.
Court orders
#- 1.Declaration that termination of employment was unfair
- 2.Equivalent of 3 months gross salary as per Clause 31 of the employment contract, Kshs.2,109,051.00
- 3.Commuter allowance for 3 months
- 4.Costs of the suit
- 5.Interest at court rates from the date of judgment till payment in full
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court Act, Section 12 (with Employment Act)
Relief refused
#Reinstatement and/or re-engagement
Not the most appropriate or practicable remedy; the claimant held a position at Moi University on leave of absence, the Council had overruled its earlier decision, and no unique circumstances justified specific performance of a contract of personal service.
Payment of monthly salary and allowances until reinstatement
No evidence that the claimant rendered any services to Kisii University between the end of his term and the termination letter, so no wages were earned or payable.
Aggravated and exemplary damages
The claimant demonstrated no legal or factual basis for such punitive awards.
Costs
Costs of the suit awarded to the claimant, plus interest at court rates from the date of judgment until payment in full.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the upshot judgment is entered in favour of the claimant against the 1st respondent in the following terms: a. Declaration that termination of employment was unfair. b. Equivalent of 3 months gross salary as per Clause 31 of the employment contract Kshs.2,109,051.00 c. Commuter allowance for 3 months. d. Costs of the suit. e. Interest at court rates from the date hereof till payment in full.
To the question whether clause 31 of the claimant's contract of employment was enforceable, the Court returns that it was binding and enforceable and the respondent was obligated to act accordingly
an ambiguous clause in a contract is construed against the party that drafted the contract it is interpreted contra proferentes (restrictively against the author)
rendering the termination of employment was unfair and unlawful within the meaning of Section 45 of the Employment Act
Leave of absence is akin to a secondment. It does not create a new ofice as such
the court is not persuaded that reinstatement is an appropriate remedy in this instance
a misdescription, or mis-statement of the designation of a signatory to a letter does not of itself render the letter inauthentic or invalid
Issues in the judgment
#The judgment variously dates the claimant's letter expressing willingness to serve as 6th December 2022 and 6th December 2023
The letter by Dr. Bob Ndubi is given inconsistent reference numbers (P/F 800283 and PF No.0002R) in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Akama v Kisii University & 2 others (Cause E048 of 2024) [2025] KEELRC 109 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/109/eng@2025-01-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.