Dr. Peter Ogecha v Kenyatta University

i. That this Honourable court does issue an order for reinstatement of the claimant herein as a lecturer in the department of security, and correction science at the Kenyatta University. ii. That upon reinstatement this Honourable Court issues an order of permanent injunction against the Respondents preventing them and their agents, servants, employees from evicting the Claimant from the office to enable him continue discharging his duties. iii. That this Honourable Court declares the disciplinary meeting of the Claimant conducted on 6th against March 2019 unfair, fair administrative discriminatory, process and therefore unlawful, illegal and null and void. iv. That this honourable court declares that the claimant be paid all his dues in back payment of allowances and salary without loss of benefit from time he was dismissed on 15th March 2019 as follows Kshs 179,012 per month since March 2019 until judgement of the court in full compliance of court orders. JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 2

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v. That the court finds the Respondents guilty of constructive dismissal and makes compensation in line with Section 49 of the Employment Act. vi. That the respondents honourable to pay the court orders claimant the punitive damages. vii. That the Honourable court orders the respondents to pay the Claimant exemplary damages for mistreatment and harassment. viii. 2. That the Respondents to bear costs of this suit. By an Amended Statement of Defence dated 19 th February 2020, the Respondent admitted that it initially appointed the Claimant as a Tutorial Fellow and later promoted him to a Full Lecturer, upon attainment of a PhD. However, the Respondent denied the alleged unfair termination of claimant’s employment and maintained that it was grounded on valid reason and fair procedure was followed. Therefore it averred that the claimant is not entitled to the reliefs sought in the Amended Claim and prayed for the suit to be dismissed with costs. Factual Background JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 3

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3. The Claimant was appointed as a Tutorial Fellow by the Respondent on 25th April 2015. He was promoted to Lecturer on permanent and pensionable terms on or about 7th April 2017. The Claimant served in the Respondent's School of Security, Diplomacy and Peace Studies. 4. Between April 2018 and May 2018, malicious emails were circulated to the Respondent's Vice Chancellor, top and middle management, lecturers, staff and students. The emails contained grave allegations including that some instructors did not have the required academic certificates, some bought research projects and thesis, some were in the habit of writing proposals and projects for students at a fee, the Respondent required students to submit gifts to expedite evaluation of academic work, the Respondent did not supervise students on internship, instructors accepted bribes from students, some instructors were quacks and "Wikipedia instructors" and that the Respondent was in the business of giving substandard training and education. 5. On 23rd May 2018, three police officers accosted the Claimant while in a lecture room at Kenyatta University City Campus demanding surrender of his phones and JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 4

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laptop in line with a court order that had been sought by Lucy Wangui Maina who is the Dean of the department. The Claimant was summoned to the Directorate of Criminal Investigations office to record a statement with regards to the email sent on diverse dates of April 2018 to May 2018. 6. The Respondent lodged a complaint with the Directorate of Criminal Investigations in relation to the malicious emails. Upon investigations, the Directorate of Criminal Investigations allegedly prepared a cyber report which linked the Claimant to the authorship and dissemination of the malicious emails. The Claimant was then arrested and arraigned in court. On 3 rd September 2018, the Claimant applied for deferment of plea taking in the criminal case on the ground that there was an ongoing internal disciplinary process. 7. In the meanwhile the Claimant was suspended from employment vide a letter dated 26 th September 2018 which cited the investigation by the police about his involvement in the alleged inciting email. The suspension letter referred to an email of July 2018 while the alleged email linked to the Claimant was from April 2018 to May JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 5

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2018 The criminal charges were eventually dropped under section 87(a) of the Criminal Procedure Code on 13 th November 2018. 8. Subsequently the Claimant was invited to a disciplinary hearing before the Senior Board of Discipline on 22 nd February 2019. The hearing was conducted on 6 th March 2019. The Claimant was accompanied by two union officials. He was given an opportunity to articulate his defence which was duly considered. The Senior Board of Discipline eventually dismissed the Claimant from employment vide letter dated 15th March 2019. 9. The Claimant lodged an appeal to the Chairperson of the Council on 28th March 2019 within the specified period of 14 days. The Claimant was invited for the Staffs Appeal Board on 21st April 2022 vide a letter dated 14 th April 2022. The Claimant failed to appear before the Staffs Appeal Board on the date scheduled for his appeal. Then Respondent wrote to the Claimant on 22nd April 2022 informing him of his failure to turn up and that the Staffs Appeal Board decided to uphold the decision of the Senior Board of Discipline and as such his dismissal was upheld. Evidence JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 6

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10. The Claimant testified as CW1 on 4th February 2025 and adopted a statement dated 10 th June 2019 as his testimony. He also produced a bundle of 9 documents dated 10th June 2019 as exhibits. 11. In brief, he stated that he was employed by the respondent as a Tutorial Fellow and later promoted to Full Lecturer on Subsequently, permanent he was and arrested pensionable and charged terms. with insemination of an offensive email to the respondent’s management, staff and students. In the meantime, he was suspended from service for the same offence. The criminal charges were eventually dropped under section 87(a) of the Criminal Procedure Code on 13th November 2018. On 6th March 2019, he attended disciplinary hearing before Senior Board of Discipline and he was dismissed vide letter dated 15th March 2019. 12. He contended that the dismissal was unfair and unlawful because there was no evidence in support of the allegations made against him was placed before the Board Discipline or this Court. Besides, fair procedure was not followed as the Board of Discipline was included conflicted members, and the evidence against him, including the JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 7

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investigation report was not given to him to prepare for the disciplinary hearing. Therefore he prayed for reliefs sough in his Claim. 13. In cross-examination, the Claimant stated that he holds a PhD in Disaster Management from Meru University of Science and Technology. He confirmed that he saw the email dated 9th May 2018 at page 21 of the Respondent's documents and acknowledged that the contents of the email were not pleasant and could cause panic. 14. He also confirmed that he had seen the letter dated 18 th September 2018 from the Director of Criminal Investigations at page 29 of the Respondent's documents which stated that his email address was linked to the email at page 21. He further confirmed that he was the accused in the charge sheet at page 15 of the Respondent's documents and that the charge sheet had the approval of the Director of Criminal Investigations. 15. He confirmed that he was taken through a disciplinary process where he was invited and attended with two union officials. He confirmed that he saw the minutes of the disciplinary hearing at page 30 of the Respondent's JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 8

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documents and that his defence was recorded at pages 32-34. 16. In re-examination, he reiterated that he never circulated the email and that there was no proof that the email address was attributed to him. He stated that his email was one of the many that received the email and that the criminal case was withdrawn. He contended that there should have been a further report to show the IP address of the device that was used to send the email. 17. The Respondent called its Head of Human Resources Department, Ms. Joyce Mueni Mbuvi, as RW1 and she adopted a statement dated 28th January 2026 as her evidence in chief. She also produced a bundle of 13 documents dated 11th July 2019 and a supplementary bundle of 3 documents in the list dated 23 rd October 2024 as exhibits. 18. In brief she stated that the Claimant was dismissed by a letter dated 15th March 2019 after investigations, including those conducted by Investigations (DCI), dissemination of the Directorate allegedly malicious of Criminal him to the circulated to the linked emails JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 9

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Respondent's Vice Chancellor, management, lecturers, staff and students. 19. She stated that the emails, circulated between April and May 2018, contained serious allegations against the Respondent and its staff, were capable of damaging the University's reputation, and justified the institution of disciplinary proceedings against any staff member linked to their authorship or dissemination. 20. She further testified that the Respondent lawfully commenced disciplinary proceedings after being satisfied that there were reasonable grounds to require the Claimant to show cause. She denied that the disciplinary process was actuated by malice or was triggered by the criminal proceedings, disciplinary process maintaining had that commenced the internal before the withdrawal of the criminal charges. She stated that the Claimant was accorded a fair hearing, having been given adequate notice of the allegations, an opportunity to respond both in writing and orally before the Senior Board of Discipline and the right to be accompanied by union representatives. JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 10

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21. She further maintained that the erroneous reference to emails of July 2018 instead of April and May 2018 was a typographical error that occasioned no prejudice to the Claimant, who demonstrated full knowledge of the allegations during the disciplinary proceedings. She also denied that the Claimant was denied any documents or evidence, that the disciplinary committee was biased or had prejudged the matter, and stated that although the suspension letter indicated that the Claimant's inpatient medical cover had been cancelled, the cover remained operational throughout the suspension. 22. Regarding the appeal, she testified that the Respondent duly processed the Claimant's appeal and invited him to appear before the Staff Appeal Board on 21 st April 2022. According to her, the Claimant failed to attend the hearing despite being notified, and the Appeal Board upheld his dismissal by the Senior Board of Discipline. 23. In cross-examination she confirmed that paragraph 8 of her witness statement stated that the Respondent had the right to institute disciplinary process. She confirmed that paragraph 12 stated that the Claimant was not denied any evidence that linked him with the malicious email. She JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 11

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stated that the DCI report was a letter dated 18 th September 2018 (Respondent's bundle Page 29) which was incriminating the Claimant. 24. She confirmed that paragraph 13 stated that the Claimant appealed but he failed to attend the hearing of the Appeal 21st on April 2022. She confirmed that she was familiar with Article 26 D(VI) of the Collective Bargaining Agreement which provides that an appeal is to be filed within 14 days of the decision, and Article 26 D(VII) which provides that response from the Chair is to be communicated within 14 days. She confirmed that from 27 th March 2019 to 21st April 2022 was more than 14 days. The Claimant's Written Submissions 25. The Claimant filed his written submissions dated 10 th March 2026 wherein he identified four issues for determination, namely: whether the termination of the Claimant's employment was substantively unfair; whether the Respondent complied with the procedural requirements of the law before terminating the Claimant's employment; whether there was violation of rules of JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 12

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natural justice and whether the Claimant is entitled to the remedies sought. 26. On substantive fairness, the Claimant submitted that Section 43 and 45 of the Employment Act require an employer to prove the reasons for termination and where the employer fails to do so, the termination is to be deemed unfair. The Claimant argued that there is no evidence, forensic or otherwise, linking him to the alleged email. The Respondent relied on a letter dated 18 th September 2018 from the DCI which was not accompanied by a forensic report that could electronically and digitally link the Claimant to the alleged email including the IP address that sent the email. The Claimant submitted that his dismissal was not supported with sufficient evidence and there was thus no valid reason to summarily dismiss him. 27. The Claimant relied on the Court of Appeal case of Kenfreight (EA) Limited v Benson K. Nguti where the Court held that an employer must demonstrate valid and fair reasons employment. He before also terminating relied on CFC an employee's Stanbic Bank Limited v Danson Mwashako Mwakuwona where the JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 13

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Court held that the employer bears the burden of proving the reason for termination and failure to do so renders the termination unfair. He further relied on Mary Chemweno Kiptui v Kenya Pipeline Company Limited where the court in reinstating the Claimant held that termination without a valid reason offends the provisions of the Employment Act. 28. On procedural fairness, the Claimant submitted that Section 41 of the Employment Act requires an employer to explain the reasons for termination, allow the employee to respond, and allow the employee to be accompanied by a fellow employee or union representative. The Claimant also relied on Article 26 of the Collective Bargaining Agreement which outlines the procedure to follow in disciplinary matters for academic staff. Article 26(d)(i) & (ii) provides that disciplinary hearings should be conducted within 28 days for employees on suspension and investigations should be concluded in 42 days. Article 26(d)(vii) & (viii) provides for the Chairperson of the Council to receive appeals within 14 days and determine appeals within 45 days. JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 14

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29. The Claimant submitted that he was suspended on 26 th September 2018 but only invited to the Senior Board of Discipline on 22nd February 2019, over five months late. He described the said delay as a material breach. He further submitted that RW1 acknowledged that his appeal against the dismissal was lodged on 28 th March 2019, within the prescribed timeline of 14 days but this was never responded to. She further admitted he was only invited on 21st April 2022, well over three years later and during the pendency of this claim. 30. The Claimant further submitted that the Respondent failed to comply with these mandatory provisions of the law and policy. He was also not issued with a Notice to Show Cause, and was invited to disciplinary hearing out of the prescribed time without being given any materials/evidence that the Respondent intended to rely on. He maintained that he was never accorded an a fair opportunity to defend himself. 31. To fortify his submissions, the Claimant cited the case of Walter Ogal Anuro v Teachers Service Commission (supra) where the Court held that a termination of employment must pass both the substantive JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 15 and

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procedural fairness Corporation of test. He Kenya v also relied Andrew on Postal K. Tanui (supra) where the Court of Appeal emphasized that compliance with Section 41 is mandatory and failure to accord an employee a fair hearing renders termination unfair. 32. On violation of rules of natural justice, the Claimant submitted that the Senior Board of Discipline was improperly constituted. The members who were in the Senior Disciplinary Panel had been adversely mentioned in the email allegedly sent by the Claimant. They were Dr. Cyprian Kavivya and Dr. Felistus Kinyanjiu. Besides, Dr. Daniel Muindi and Professor Adanje Mwisukha, who sat in the Senior Board of Discipline meeting, had concurrently served in the Investigations Committee against the Claimant and could therefore not be jury in their own cause. For emphasis, he relied on the case of Loice Otieno v Kenya Commercial Bank Limited where the Court held that failure to accord an employee a fair hearing amounts to violation of the rules of natural justice. 33. As regards the burden of proof, the Claimant submitted that under Section 47(5) of the Employment Act, the JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 16

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employee bears the burden of proving that termination occurred, while the employer bears the burden of justifying the grounds for termination. The Claimant demonstrated Respondent that failed to termination occurred justify the that but the decision was supported by a valid reason. 34. Finally, he urged the Court to find that the termination was unlawful and unfair and grant the reliefs sought. Specifically, the Claimant urged the Court to order his reinstatement contending that he is ready and willing to resume his teaching, research and supervision responsibilities. The Respondent's Written Submissions 35. The Respondent filed its final written submissions dated 25th May 2026 whereby it contended that the Claimant's case has no merit whatsoever and ought to be dismissed with costs. It submitted the dismissal was justified by a valid reason namely, the circulation of malicious emails between April 2018 and May 2018 containing grave allegations. It contended that the emails were calculated to cause and indeed caused panic at the University. JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 17

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36. The Respondent submitted that it reported the issue to the Directorate of Criminal Investigations (DCI), who opened investigations and produced a cyber report which linked the Claimant with the authorship and dissemination of the malicious emails. The Claimant was arrested and arraigned in court. The Respondent relied on the Court to the DCI's letter dated 18th September 2018 at page 29 of the Respondent's Bundle of Documents which confirmed that the investigations done produced a cyber report linking the Claimant with the authorship and dissemination of the malicious emails. 37. The Respondent submitted that when the Respondent filed its application dated 7th October 2021 seeking to have the DCI attend Court to produce the cyber report, the Claimant strenuously opposed the Application. It contended that the Claimant did not want the cyber report to be shown to Court yet, he now takes advantage of the absence of the cyber report as the only defence against the accusations facing him. The Respondent contended that the Claimant cannot be allowed to approbate and reprobate. For emphasis, he relied on Behan & Okero Advocates v National Bank of Kenya JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 18 [2007]

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eKLR where affirmed the principle that a party cannot approbate and reprobate. 38. The Respondent further submitted that on the basis of the evidence placed before its Senior Board of Discipline, particularly the letter by the DCI dated 18 th September 2018, the Claimant was responsible for dissemination of the subject emails. 39. For emphasis, it relied on Kenya Revenue Authority v Reuwel Waithaka Gathi & 2 Others (2019) eKLR where the Court of Appeal stated that under section 44 of the Employment Act, one of the grounds that would justify the finding of gross misconduct against an employee is the commission or suspicion of commission by an employee of a crime against the property or person of the employer. The Court further stated that suspicion is enough to justify summary dismissal and the employer did not need to wait for a criminal court to find the employee guilty. 40. The Respondent also relied on Galgala Jarso Jillo v Agricultural Finance Corporation (supra) where Manani J stated that an employer will be deemed to have substantive justification for terminating a contract of JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 19

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service if he/she genuinely believed that the matters that informed the decision to terminate existed at the time the decision was taken. All that is required is for the employer to have a reasonable basis for genuinely believing that the ground exists even if it later turns out that it in fact did not. 41. The Respondent further relied on Thomas Sila Nzivo v Bamburi Cement Limited (supra) where Rika J stated that in summary dismissal under Section 44 of the Employment Act, an employer is not required to have conclusive proof of the Claimant's involvement. The employer only needed to have reasonable and sufficient grounds to justify the termination. 42. On procedural fairness, the Respondent submitted that the Claimant was given a fair hearing. He was given ample time to prepare his defence, duly notified of the accusations, given a chance to respond orally and in writing, appeared before the Senior Board of Discipline accompanied by union officials of his choice, and his defence and evidence were taken into account before a decision to dismiss him was made. JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 20

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43. It submitted that the Claimant has made a mountain out of the alleged delay in conducting the disciplinary hearing but that did not affect the fairness of the hearing. The Court should not be asked to punish any slight delay by declaring that there is no procedural fairness. The Respondent's Senior Board of Discipline consists of several members who meet often to consider disciplinary matters but who also have many other responsibilities at the University. 44. The Respondent submitted that there is no basis to the allegation that the attendance of persons adversely mentioned in the malicious emails would prejudice the Claimant. The Claimant fails to make a distinction between persons who are in attendance in a meeting to the actual decision makers in such a meeting. The Claimant does not tell why a person adversely mentioned in an email would be biased against the Claimant in particular. 45. The Respondent submitted that the Claimant's appeal was considered and determined even though the Claimant refused to attend the hearing before the Appeals Committee. The alleged delay in hearing the Appeal is justifiable as the Claimant filed this Suit shortly after JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 21

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dismissal, a fact that ensured the suit took centre-stage for quite some time. 46. As regards the remedies sought, the Respondent submitted that the Claimant is not entitled to the any. About the prayer for reinstatement, the Respondent submitted that the same should not be granted since no exceptional circumstances" which have been demonstrated; that it is over seven years since the dismissal and it is not practical to reinstate him as the offending emails mentioned some lecturers who are still in the University; and that he is capable of obtaining employment elsewhere. 47. The Respondent Teachers relied Service on Walter Commission Ogal Anuro (supra) where v this Court declined to grant reinstatement and stated that reinstatement is a premiere remedy uniquely available to the court but the court is enjoined by Section 49(4)(d) of the Act to take into account "the common law principle that there should be no order for specific performance in a contract of service except in very exceptional circumstances." The court declined to order reinstatement JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 22

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and instead awarded the Claimant 8 months' salary in compensation for unfair termination. 48. Regarding Prayer 2A for back payment of salary and allowances, the Respondent submitted that the prayer ought not to be granted as the same runs contrary to the express provisions of Section 49(1)(c) of the Employment Act which caps the award of damages/compensation for unfair termination to the equivalent of 12 months’ salary in the maximum. 49. For emphasis, Corporation the of Respondent Kenya v relied Andrew on Postal K. Tanui, supra, where the Court of Appeal stated that Parliament expressed its view on how the interests of employers and employees, and social economic interests of the country as a whole, are best balanced in cases of unfair dismissal. 50. The Respondent also relied on Mary Wakhabubi Wafula v British Airways PLC (supra) where the trial court explained the importance of capping compensatory awards and adopted the reasoning in Eastwood & Another v Magnox Electric PLC; McCabe v Cornwall County Council & Others [2004] UKHL. JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 23

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51. The Respondent submitted that even if unfair termination had been proven (which is not the case), the circumstances of the case would militate against awarding the maximum 12 months' salary. The Respondent prayed that the Claimant's case be dismissed with costs. Issues for determination and analysis 52. Having carefully considered the pleadings, evidence and submissions, it is without doubt that the claimant was employed by the respondent as a Lecturer on permanent and pensionable terms until 15 th March 2019 when he was summarily dismissed for misconduct. The Claimant contended that the termination of his employment was unfair and unlawful but the Respondent was of a different view. 53. Section 45(2) of the Employment Act provides that: (2) A termination of employment by an employer is unfair if the employer fails to prove: (a) that the reason for the termination is valid; (b) that the reason for the termination is a fair reason— JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 24

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(i) related to the employee's conduct, capacity or compatibility; or (ii) based on the operational requirements of the employer; and (c) that the employment was terminated in accordance with fair procedure. 54. It follows that in case like this, the employer has a legal burden to adduce evidence to prove that the reason for the termination was valid and that a fair procedure was followed before the decision to terminate was reached. Guided by the above law, and having considered the material presented to the Court, the main issues for determination are: (a) Whether the reason for the dismissal was valid? (b) Whether fair procedure was followed? (c) Whether the reliefs sought should be granted? The reason for the dismissal 55. RW1 testified that the Claimant was dismissed upon investigations, including independent investigations by the Directorate of Criminal Investigations, which linked the Claimant to the dissemination of malicious emails that JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 25

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were circulated to the Respondent's Vice Chancellor, top and middle management, lecturers, staff and students. The Respondent produced the letter dated 18th September 2018 from the Directorate of Criminal Investigations at page 29 of the Respondent's bundle of documents which confirmed that after the complaint was lodged, the DCI opened investigations and produced a cyber report linking the Claimant with the authorship and dissemination of the malicious emails. The Respondent also produced the charge sheet at page 15 of its bundle which had the approval of the Director of Public Prosecutions. 56. During cross-examination, the Claimant confirmed that having seen the email dated 9th May 2018 at page 21 of the Respondent's documents and acknowledged that the contents of the email were not pleasant and could cause panic. He also confirmed that he had seen the letter dated 18th September 2018 from the DCI at page 29 which stated that his email address was linked to the email at page 21. He further confirmed that he was the accused in the charge sheet at page 15 of the Respondent's documents and that the charge sheet had the approval of the Director of Public Prosecutions. JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 26

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57. However, the Claimant denied circulating the email and contended that there was no forensic report linking him to the subject email. He maintained that he received the email just like any other person to whom it was addressed. He contended that the respondent did not produce any forensic report showing that he authored the subject email and circulated it. 58. The Respondent argued that the Claimant cannot be allowed to approbate and reprobate contending that when the Respondent filed its Application dated 7 th October 2021 seeking to have the DCI attend court to produce the cyber report, the Claimant strenuously opposed the Application. The respondent argued that the Claimant is now taking advantage of the absence of the cyber report as the only defence against the accusations facing him. 59. I have carefully evaluated the evidence on record and it is clear that the Respondent relied on the letter dated 18 th September 2018 from the DCI to dismiss the claimant from service. The question that begs is, where is the evidence that led to the said letter? It is not enough for the employer to rely on a letter from an external investigator, to dismiss an employee without seeing the JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 27

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report of the investigations, interrogating it and making his own independent conclusion. The report must also be availed to the employee to enable him prepare his defence during the disciplinary hearing. 60. The letter by the DCI referred to an investigation report that was never seen by both the claimant and the Board of Discipline before or during the disciplinary hearing. As at the time of the dismissal, the criminal proceedings instated against the claimant on the basis of the said investigations report had been withdrawn and have since not been revived. The respondent never did its own investigations and therefore, it had no evidence upon which to base the dismissal of the claimant. 61. Even before this Court, the respondent did not produce the alleged investigations report that was referred to in the DCI’s letter dated 18th September 2018. The respondent in its written submissions blamed the claimant for its failure to produce the said investigations report contending that he is the one who opposed the application dated 7th October 202, which sought that the DCI be ordered to provide a certified copy of the report and further that he be summoned to give evidence in court. JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 28

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62. It is a fact that the respondent filed the said application and the claimant filed a Replying Affidavit sworn on 13 th January 2022. The claimant’s grievance in the affidavit was that the application was made after two years and it was intended to delay trial of the suit. 63. I have perused the court record and it is clear that the court dismissed the said application vide the ruling rendered on 21st July 2022, not because of the arguments raised by the claimant but because it was supported by a defective Affidavit. It is also clear that the Respondent sought leave to appeal and it was granted but no appeal was preferred or any other measure deployed like judicial review to compel the DCI to supply the Respondent with copies of the said investigation report. 64. In my view, the investigation report by the DCI was so crucial to support the Respondent’s case during the disciplinary hearing and before this court, that it ought to have been among the first evidence to be filed in support of the defence case. However, the Respondent never sought the report from the DCI before the disciplinary process was commenced and it never showed any desire JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 29

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to use the report as evidence in this suit until two years lapsed after the commencement of the suit. 65. In the circumstances, I find that the failure by the respondent to produce the investigations report before this court is not attributable to the claimant. Without the said report, before this court, I see no basis upon which the subject email can be linked to the claimant. While appreciating the holding in Kenya Revenue Authority v Reuwel Waithaka Gathi & 2 Others, Thomas Sila Nzivo v Bamburi Cement Limited and Galgala Jarso Jillo v Agricultural Finance Corporation, supra, I must observe that the allegations against the claimant could have been proved by electronic evidence without difficulties. The question of genuine suspicion in the matter does not arise. All that was required was for an ICT expert including DCI officer to verify whether or not the subject email originated from the claimant computer or disseminated by him. 66. The Claimant denied being the author of the email and also denied that he circulated the same. Under section 47(5) of the Employment Act, the burden of proof shifted to the respondent to justify the reason for the dismissal JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 30

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but he failed to do so. The Court of Appeal, in Kenfreight (EA) Limited v Benson K. Nguti held that an employer must demonstrate valid and fair reasons before terminating an employee's employment. 67. Again, the Court of Appeal in CFC Stanbic Bank Limited v Danson Mwashako Mwakuwona held that the employer bears the burden of proving the reason for termination and failure to do so renders the termination unfair. In Mary Chemweno Kiptui v Kenya Pipeline Company Limited the court reinstated the Claimant held to his employment and held that termination without a valid reason offends the provisions of the Employment Act. 68. In the instant case, I find that the Respondent’s reliance on a letter by the DCI stating that investigations report linked the Claimant with the subject email was not sufficient evidence to discharge the burden of proof of the reason for dismissal under the Act. It was necessary for the Respondent to produce the investigations report and call the investigator to give evidence on the same but that never happened. Consequently, I hold that the respondent has failed to prove that the dismissal of the Claimant was grounded on a valid reason related to his conduct, JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 31

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capacity or compatibility; or the employer’s operational requirements. The procedure followed 69. Section 45(2)(c) of the Employment Act places on the employer the burden of proving that termination of employment contract was done in accordance with fair procedure. Section 41 of the Act sets out the procedure for terminating employment for misconduct as follows: “(1) subject to section 42(1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation. (2) Notwithstanding any other provision of this Part, an employer shall, before terminating the JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 32

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employment of an employee or summary dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1), make.” 70. The above procedure is mandatory before terminating the services of an employee on account of misconduct like in this case. The employer is required to accord the employee an oral hearing whereby he must to explain the misconduct to the employee in a language he/she understands. The employee is entitled to have another employee present during the explanation and both the employee and his companion are entitled to respond to the allegations. Finally, the response by the employee and his/her companion must be considered before the verdict is made. 71. Article 26 of the Collective Bargaining Agreement (CBA) outlines the procedure to follow in disciplinary matters for academic staff. The relevant provisions are: - JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 33

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“(i) Article 26(d)(i) & (ii) disciplinary hearings should provides be that conducted within 28 days for employees on suspension and investigations should be concluded in 42 days. (ii) Article 26(d)(vii) & (viii) provides for the Chairperson of the Council to receive appeals against the decision of the Disciplinary Committee within 14 days, and to determine appeals within 45 days.” 72. The Claimant was suspended on 26th September 2018, but was only invited to the Senior Board of Discipline on 22 nd February 2019, which was over five (5) months later. The hearing was conducted on 6th March 2019 in breach of the timelines provided in the Collective Bargaining Agreement. 73. The Claimant filed his appeal to the Chairperson of the Council on 28th March 2019 within the 14 days timeline. The appeal was not responded to within the 45 days timeline. The Claimant was invited for the Staffs Appeal Board on 21st April 2022, which was well over three (3) years later and during the pendency of this claim. JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 34

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74. The Respondent argued that the alleged delay in conducting the disciplinary hearing did not affect the fairness of the hearing. The Respondent submitted that the Senior Board of Discipline consists of several members who meet often to consider disciplinary matters but who also have many other responsibilities at the University. The Respondent further argued that the alleged delay in hearing the appeal is justifiable as the Claimant filed this suit shortly after dismissal, a fact that ensured the suit took centre-stage for quite some time. 75. I have considered the evidence on record. The Claimant was accorded an opportunity to defend himself both in writing and by appearing before the Senior Board of Discipline. The Claimant was given ample notice to enable him to prepare for his defence. He was given a chance to respond to the allegations made against him in writing as well as orally. He attended the disciplinary hearing and was given ample opportunity to articulate his defence which was duly considered before a decision to dismiss him was reached. He was given an opportunity to be accompanied by Union officials of his choice and such officials indeed attended the hearing. JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 35

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76. However, the process was marred by significant delays. The Claimant was suspended on 26th September 2018 but only invited to a disciplinary hearing on 22 nd February 2019. The hearing was conducted on 6 th March 2019. The appeal was filed on 28th March 2019 but the Claimant was only invited to the Staffs Appeal Board on 21 st April 2022. Whichever one looks at the evidence on record, it is clear that fair procedure was not followed. The Claimant failed to appear on that date. 77. I gather support from the case of Postal Corporation of Kenya v Andrew K. Tanui supra where the Court of Appeal emphasized that compliance with Section 41 is mandatory and failure to accord an employee a fair hearing renders termination unfair. Also in the case of Loice Otieno v Kenya Commercial Bank Limited where the Court held that failure to accord an employee a fair hearing amounts to violation of the rules of natural justice. 78. The Respondent further failed to conduct the disciplinary hearing within the timelines provided in the Collective Bargaining Agreement. The Respondent also failed to determine the appeal within the timeline provided in the JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 36

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Collective Bargaining Agreement. The Respondent invited the Claimant for the appeal hearing over three years after the appeal was filed. 79. Consequently, I hold that the Respondent failed to comply with the mandatory procedural safeguards under Section 41 of the Employment Act and the Collective Bargaining Agreement. The termination of the Claimant's employment was therefore not done in accordance with a fair procedure. Whether the Claimant is entitled to the remedies sought 80. The primary prayer by the Claimant was reinstatement to his employment without loss of benefits and status. However, Section 12(3)(viii) of the Employment and Labour Relations Court Act provides that the court may make: “An order for reinstatement of any employee within three years of dismissal, subject to such conditions as the court thinks fit to impose under circumstances contemplated under any written law.” JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 37

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81. In view of the foregoing limitation, the prayer for reinstatement cannot issue as the period of separation is over seven (7) years. As such the proper relief to grant is compensatory damages under section 49(1) of the Employment Act being compensation plus salary in lieu of notice. I gather support from Walter Ogal Anuro v Teachers Service Commission (supra), where this Court declined awarded the to grant Claimant reinstatement eight (8) and months' instead salary in compensation for unfair termination. 82. As regards termination notice I award him three months salary in lieu of notice considering Clause 25 of the CBA which provides for three months’ notice before termination of employment. His gross monthly salary was Kshs. 179,012 and therefore three months salary is Kshs. 537,036. 83. As regards compensation, the Claimant worked from April 2015 to March 2019, approximately four years and no misconduct was proved against him. He was on permanent and pensionable terms and therefore he had legitimate expectation to continue working and earning salary for a long period. He did not secure another JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 38

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employment within one year. Putting all that into consideration I award him four months gross salary as compensation for unfair termination being Kshs. 716,144. 84. The Claimant also prayed for back payment of salary and allowances from 15th March 2019 until judgment of the Court, but since I did not order reinstatement, that prayer fails. 85. The Claimant also prayed for punitive and exemplary damages but there is no basis for granting that relief. The remedy granted under Section 49 of the Employment Act above, is sufficient to compensate the claimant for the unfair termination. Conclusion 86. I have found that the dismissal of the Claimant was unfair within the meaning of Section 45 of the Employment Act. I have further found that the Claimant is entitled to some of the prayers sought. Consequently, I enter judgment for the Claimant against the Respondent as follows: a) Salary in lieu of notice......................................Kshs. 537,036 JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 39

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b) Compensation for unfair dismissal……………..Kshs. 716,144 Total Kshs. 1,253,180 c) The above award is subject to statutory deductions. d) Costs of this suit plus interest at court rates from the date of this judgment. DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 24TH DAY OF SEPTEMBER, 2026. ONESMUS MAKAU JUDGE Appearance: Mandere for Claimant Thuo for Respondent JUDGMENT IN ELRC CAUSE NO.369 OF 2019. 40

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