Nyongesa v Maseno University (Cause E006 of 2025) [2025] KEELRC 2246 (KLR)
The bottom line
#A Kenyan university fairly fired a lecturer for mark tampering, but still lost the case because it refused to give him documents he needed for his defence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondent had a valid and fair reason to terminate the claimant's employment (Sections 43 and 45 of the Employment Act)
- 2.Whether the termination was carried out in accordance with a fair procedure, particularly the availment of documents requested by the claimant (Section 41 of the Employment Act)
- 3.What reliefs, if any, the claimant is entitled to (declaration, reinstatement, compensation, certificate of service)
Key legal issues
#Validity of the reason for termination
The respondent had a valid and fair reason: audit trial showed the claimant's user ID DNYONGESA made unauthorised entries for all seven students, and he admitted using his credentials.
The Investigation Report and disciplinary minutes established that the user ID DNYONGESA assigned to the claimant made the entries; the claimant admitted his credentials were used and could not explain when or how they were compromised. The PF number 2267 was not the password, defeating his defence. His admission that marks were entered without examination booklets, previous warning of similar conduct, and the variation between marksheets and Academic Progress Reports grounded a genuine belief on a balance of probability.
Procedural fairness - refusal to avail requested documents
Although notice, hearing and appeal were accorded, the respondent's refusal to avail documents requested by the claimant rendered the termination procedurally flawed and unfair under Section 45.
The claimant requested six categories of documents and system access; the respondent declined on the unilateral premise that they would not facilitate his defence. The court held that availment of documents used to prosecute an employee is integral to fair hearing and fair administrative action, applying Judicial Service Commission v Mbalu Mutava, Ol Pejeta Ranching and Regent Management. The employer cannot decide for the employee what is useful to his defence.
Reinstatement and compensation
Reinstatement declined for want of practicability and the claimant's contribution to his dismissal; compensation of 3 months' gross salary awarded under Section 49(1)(c).
Applying Section 12(3)(vii) of the ELRC Act and Section 49(4) of the Employment Act, the court found the claimant substantially contributed to his termination, had been previously warned for similar misconduct, demonstrated no exceptional circumstances justifying specific performance of a contract of personal service, and reinstatement was impracticable. Weighing his long service, appeals and reduced chances of comparable employment, the equivalent of 3 months' gross salary was fair.
Legal principles established
#- Under Section 43 of the Employment Act, an employer need only show reasonable grounds for a genuine belief in the reasons for termination; the ground need not in fact exist.
- Availment of documents the employer uses to charge or prosecute an employee is an integral part of the right to fair hearing and fair administrative action; the employer may not unilaterally decide the documents are of no use to the employee.
- Reinstatement is a discretionary remedy and its practicability involves balancing the interests and justice of the parties with regard to the future.
Court orders
#- 1.Declaration that termination of the claimant's employment was unfair and unlawful
- 2.Equivalent of 3 months gross salary as compensation
- 3.Certificate of service
- 4.Costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and the Employment and Labour Relations Court Act (Sections 12(3), 43, 45, 49 and 51 of the Employment Act invoked)
Relief refused
#Reinstatement
Claimant substantially contributed to his termination, had previously been warned for similar misconduct, showed nothing exceptional, and reinstatement was not practicable
Compensation of Kshs.3,374,023.90 as prayed (equivalent of the full relief sought)
Claimant substantially contributed to the termination; the court awarded the equivalent of 3 months gross salary instead
Costs
Costs of the suit awarded to the claimant
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.
all that the employer is required to show is that it had reasonable grounds for the genuine belief that it had a reason to terminate the employee’s employment.
It is trite law that availment of the documents the employer uses to charge or prosecute an employee for alleged misconduct is an integral part of the constitutionally protected right to be heard and fair hearing. It is one of the elements of fair administrative action.
It does not lie upon the employer to determine whether or not documents are useful to the employee’s case.
For the foregoing reasons it is the finding of this court that termination of the claimant’s employment by the respondent on 3rd November, 2023 was procedurally fiawed and thus unfair within the meaning of Section 45 of the Employment Act.
a. Declaration that termination of the claimant’s employment was unfair and unlawful. b. Equivalent of 3 months gross salary. c. Certificate of service. d. Costs of the suit.
Issues in the judgment
#The judgment does not print the parties' names or the suit/case number in the excerpted text; the caption is missing from the opening paragraphs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyongesa v Maseno University (Cause E006 of 2025) [2025] KEELRC 2246 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2246/eng@2025-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.