Gregory Nyongesa Wanyembi v Mount Kenya University

2023 @250,000 (Two Hundred and Fifty Thousand only). iii. That the Claimant is entitled to general damages for wrongful and unlawful termination. iv. That as a result, the court do order the Claimant be paid as hereunder: a) General damages for unlawful and wrongful termination b) Unpaid salary for 1st February 2022 to 31st January 2023 @ Kshs. 250,000 c) Interest d) Costs e) Any other relief the Court deems fit and just to grant. 2. The Claimant avers that he was employed by the Respondent vide a letter of appointment dated 13th January 2014 and that upon the expiry of his initial contract, the Respondent extended his employment for a further period of five years vide a letter 2 KTL ELRC CAUSE NO. E003 OF 2025 JUDGMENT

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dated 13th February 2018. According to the Claimant, the renewed contract was due to expire on 31st January 2023. 3. It is the Claimant’s case that his employment was abruptly terminated on 31st January 2022 by the Respondent, approximately one year before the expiry of his contract. 4. He contends that the Respondent did not provide any reason for the abrupt termination of his employment. He further contends that he was neither issued with a notice to show cause nor afforded an opportunity to respond to any allegations against him. 5. In response, the Respondent filed a Response to the Memorandum of Claim dated 7th April 2025 denying the Claimant’s allegation that his employment had been unlawfully and unfairly terminated. 6. According to the Respondent, the Claimant, vide a retirement notice dated 25th May 2021, notified it of his intention to retire from the University and issued six months’ notice effective from that date. The Respondent further states that the notice was governed by Schedule XXXIV, paragraph B.10(ii) of its Statutes, which provides that the retirement age for teaching 3 KTL ELRC CAUSE NO. E003 OF 2025 JUDGMENT

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staff is 70 years and that a member of staff who attains retirement age shall cease duty on the next 30 th June following the date on which he or she attains that age. 7. The Respondent avers that, in accordance with the said provision, which was at all material times within the Claimant’s knowledge, it informed him that his retirement notice would take effect and terminate his employment on 31st December 2021. 8. The Respondent’s case is therefore that the Claimant’s employment came to an end on 31 st December 2021 pursuant to his retirement notice dated 25th May 2021. 9. It contends that the Claimant voluntarily terminated his employment by retiring and that the Respondent duly accepted his decision. 10. The Respondent further avers that, upon the expiry of the retirement notice, the Claimant duly completed the clearance process. 11. The Respondent consequently urged the Court to dismiss the Claimant’s suit with costs. 4 KTL ELRC CAUSE NO. E003 OF 2025 JUDGMENT

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The Evidence 12. The Claimant testified as CW1. He adopted his witness statement as his evidence-in-chief and relied on the documents filed in support of his case. 13. He testified that his contract of employment was for a period of five years and was due to expire on 31 st January 2023 but the Respondent terminated his employment on 31 st January 2022, before its expiry, without giving him any reason. 14. The Claimant maintained that the retirement notice relied upon by the Respondent was not genuine and denied having written it. 15. He sought compensation for the alleged unlawful and wrongful termination of his employment, together with the other reliefs set out in his Memorandum of Claim. 16. On cross-examination, the Claimant testified that his contract was terminated abruptly and that he was not issued with any document terminating it. He stated that he learned of the termination when he attended a meeting in November 2019, during which a panel comprising the Dean and other persons 5 KTL ELRC CAUSE NO. E003 OF 2025 JUDGMENT

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informed him that his contract had come to an end. He maintained that he was compelled to retire one year before the expiry of his contract and that he did not retire voluntarily. He further stated that he first saw the alleged retirement notice in the Respondent’s bundle of documents. 17. The Claimant denied the contents of the purported retirement notice, including the signature appearing thereon. He alleged that the signature had been copied and pasted onto the document. 18. The Claimant also denied receiving the Respondent’s letter dated 18th June 2021, which according to him, purportedly acknowledged and accepted his retirement. He testified that he stopped working on 31st January 2022. He denied signing the staff clearance form dated 5 th January 2022 and maintained that he had not cleared with the Respondent to date. He acknowledged that he filed the present suit on 28 th January 2025, approximately three years after his employment came to an end. 19. On re-examination, the Claimant was referred to the letter dated 25th May 2021. He stated that his email address was 6 KTL ELRC CAUSE NO. E003 OF 2025 JUDGMENT

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wanyembi@gmail.com and observed that the letter dated 18 th June 2021 did not indicate the email address through which it was allegedly transmitted to him. 20. The Respondent called Marcus Mseu, its Human Resource Officer, who testified as RW1. He adopted his witness statement dated 7th April 2026 as his evidence in chief and relied on the documents filed by the Respondent in support of its defence. 21. RW1 testified that, on 25th May 2021, the Claimant wrote to the Respondent’s Human Resource Office requesting to retire and exit from the University. The retirement notice bore a receiving stamp indicating that it had been received in Kitale and subsequently forwarded to the University. The Respondent acted upon the request by issuing a letter dated 18 th June 2021 accepting the Claimant’s retirement. According to RW1, the Claimant received and signed the letter on 22 nd June 2021. He further testified that the Claimant’s last day in the completed the Respondent’s employment was 31st December 2021. 22. RW1 further testified that the Claimant clearance process on 5th January 2022 and was issued with a 7 KTL ELRC CAUSE NO. E003 OF 2025 JUDGMENT

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clearance form after obtaining clearance from nine departments. He stated that the Claimant had never raised any complaint concerning the clearance form. Upon completion of the clearance process, the Claimant’s terminal dues were computed and paid. RW1 added that the Claimant had not sought any unpaid terminal dues in the present claim. 23. RW1 referred to the Claimant’s demand letter dated 6 th June 2023, in which the Claimant alleged that he had been forced to retire. He maintained that the Claimant had voluntarily requested to retire and that the Respondent had accepted his request. He observed that the demand letter was written approximately two years after the Claimant had left employment. RW1 maintained that the Respondent did not owe the Claimant any salary and dismissed the allegations of forgery as untrue, considering the internal processes through which the retirement notice had passed. 24. On cross-examination, RW1 stated that the email addresses attributed to the Claimant in the letter dated 25 th May 2021 were his official employment addresses, 8 KTL ELRC CAUSE NO. E003 OF 2025 JUDGMENT

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n.wanyembi@mku.ac.ke, and his private address, g.wanyembi@gmail.com. 25. At the close of the Respondent’s case, the parties were directed to file written submissions. Upon perusing the record, I did not find any submissions filed on behalf of the Claimant. The Respondent’s submissions are dated 17th July 2026. 26. In its submissions, the Respondent largely reiterated its position that the Claimant voluntarily brought his employment to an end by issuing the retirement notice dated 25 th May 2021. It maintains that the notice was duly received, accepted and acted upon, after which he completed the clearance process and was paid his terminal dues. Determination 27. From the pleadings on record, the evidence adduced by the parties and the Respondent’s written submissions. The issues arising for determination are: - 9 KTL ELRC CAUSE NO. E003 OF 2025 JUDGMENT

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i. Whether the Claimant voluntarily retired from employment or was unlawfully terminated by the Respondent ii. Whether the Claimant is entitled to the reliefs sought. Whether the Claimant voluntarily retired from employment or was unlawfully terminated by the Respondent 28. The Claimant’s case is that his contract was due to expire on 31st January 2023 but was prematurely terminated on 31 st January 2022 without notice, justification or an opportunity to be heard. The Respondent, on the other hand maintained that the Claimant voluntarily retired by issuing a retirement notice dated 25th May 2021, which it accepted. 29. Sections 107 and 108 of the Evidence Act provide that a person who desires a court to give judgment as to any legal right or liability dependent on the existence of facts asserted by that person bears the burden of proving those facts. Similarly, section 47(5) of the Employment Act places the burden of proving that an unfair termination occurred upon the 10 KTL ELRC CAUSE NO. E003 OF 2025 JUDGMENT

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employee, while the employer bears the burden of justifying the grounds for the termination. 30. In support of its case, the Respondent produced the retirement notice dated 25th May 2021, purportedly signed by the Claimant, through which he allegedly requested to retire and gave the Respondent six months’ notice. The Respondent also produced the document titled “Retirement Notice” dated 18 th June 2021 and a staff clearance form. 31. The Claimant denied authoring or signing the retirement notice and alleged that the signature appearing thereon had been copied and pasted. He similarly denied receiving the Respondent’s communication accepting his retirement and denied signing the staff clearance form. 32. An allegation of forgery is a serious allegation that must be specifically pleaded and proved by cogent evidence. Beyond denying the signature and alleging that it had been copied and pasted, the Claimant did not produce any expert evidence or other material demonstrating that the disputed documents were forged. 11 KTL ELRC CAUSE NO. E003 OF 2025 JUDGMENT

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33. I have examined the attestation section of the Claimant’s letter of appointment dated 13th January 2014 at page 4 of the Respondent’s bundle of documents and the extension of contract dated 13th February 2018 at page 6 of the same bundle. I have compared the handwritten entries appearing in those documents with the handwritten entries in the document titled “Retirement Notice” dated 18 th June 2021 at page 8 and the clearance form at page 9 of the Respondent’s bundle. 34. The handwritten entries appearing in the four documents bear striking similarities and appear to have been made by one and the same person. Significantly, the Claimant did not dispute the authenticity of the letter of appointment dated 13 th January 2014 or the extension of contract dated 13 th February 2018. It is also noteworthy that, although the Claimant produced the extension of contract dated 13th February 2018, the copy contained in his bundle omitted the attestation section. The handwritten entries in the undisputed documents therefore provide a useful basis for comparison with those appearing in the disputed retirement and clearance documents. 12 KTL ELRC CAUSE NO. E003 OF 2025 JUDGMENT

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35. Although the Court is not a handwriting expert and must therefore exercise caution when comparing handwriting, the similarities apparent on the face of the documents cannot be overlooked. When considered alongside RW1’s evidence concerning the manner in which the retirement notice was received, processed and acted upon, the comparison gives credibility to the Respondent’s position that the disputed documents originated from, or were executed by, the Claimant. 36. The Respondent also produced a clearance form showing that the Claimant completed the clearance process through nine departments. The Claimant did not specifically challenge the endorsements made by the respective departments appearing on the clearance form or call any evidence to discredit the clearance process. His denial, without more, is insufficient to displace the documentary and oral evidence presented by the Respondent. 37. The Claimant’s evidence was also inconsistent in material respects. While he pleaded that his employment was terminated on 31st January 2022, he stated during crossexamination that he was informed by a panel in November 13 KTL ELRC CAUSE NO. E003 OF 2025 JUDGMENT

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2019 that his contract had come to an end. He nevertheless continued working until January 2022. 38. Further, in his demand letter dated 6 th July 2023, the Claimant alleged that he had been forced to retire. However, in his testimony before the Court, he denied having retired and maintained that the retirement documents had been fabricated. 39. Having considered the totality of the evidence, including the handwriting appearing in the undisputed and disputed documents, I am satisfied, on a balance of probabilities, that the Claimant issued the retirement notice and subsequently completed the clearance process. The Respondent accepted his retirement request, thereby bringing the employment relationship to an end through voluntary retirement rather than termination initiated by the Respondent. 40. Consequently, the procedural requirements governing termination of employment under sections 41, 43 and 45 of the Employment Act were not applicable. The Respondent was not required to issue the Claimant with a notice to show cause or subject him to a disciplinary hearing where the cessation of the 14 KTL ELRC CAUSE NO. E003 OF 2025 JUDGMENT

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employment relationship arose from his own voluntary retirement. 41. The Claimant has therefore failed to prove that the Respondent wrongfully or unlawfully terminated his employment. Whether the Claimant is entitled to the reliefs sought 42. In his Memorandum of Claim, the Claimant sought a declaration that the Respondent’s decision to terminate his employment before the expiry of his contract was wrongful and unlawful. Having found that his employment came to an end following his voluntary retirement, the declaration sought has no basis and is declined. 43. The Claimant also sought general damages for wrongful and unlawful termination. Apart from the fact that no unlawful termination was established, the Employment Act provides specific remedies for unfair termination under section 49. General damages are not ordinarily available merely on account of the termination of an employment contract. This prayer is therefore declined. 15 KTL ELRC CAUSE NO. E003 OF 2025 JUDGMENT

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44. The Claimant further sought unpaid salary at the rate of Kshs. 250,000 per month for the period between 1 st February 2022 and 31st January 2023. Having voluntarily retired and ceased rendering services to the Respondent, the Claimant did not earn a salary during that period. Salary constitutes remuneration for services rendered. In the absence of a contractual or statutory basis, an employee is not entitled to a salary for a period during which no services were rendered. 45. In the upshot, I find that the Claimant has failed to prove his claim on a balance of probabilities. Accordingly, the Memorandum of Claim dated 28th January 2025 is hereby dismissed. There shall be no orders as to costs. 46. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 24TH DAY OF SEPTEMBER, 2026 MAUREEN ONYANGO JUDGE 16 KTL ELRC CAUSE NO. E003 OF 2025 JUDGMENT

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