Kenyatta University v Mola (Civil Appeal 377 of 2018) [2024] KECA 1213 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed an employee's dismissal was unfair because the employer never proved a valid reason, though compensation was slightly reduced to 10 months' salary.
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 proceedings before the ELRC were instituted prematurely
- 2.whether the respondent's termination was unfair and unlawful
- 3.whether the respondent was entitled to the withheld half salary
- 4.whether the learned Judge exercised his discretion properly in awarding the respondent 12 months' salary as compensation
Key legal issues
#Whether the claim was filed prematurely for failure to exhaust internal appeal mechanisms
The claim was not premature because the appellant gave no timelines for hearing the appeal and demonstrated unwillingness to hear it, engaging exceptions to the exhaustion doctrine.
Article 159(2)(c) promotes alternative dispute resolution, and parties will seldom be allowed to circumvent internal mechanisms. However, the University's Terms of Service were silent on the duration within which an appeal ought to be heard; the University gave no guidance during the 14 days it extended the respondent's stay, and issued a notice to vacate. Keeping an aggrieved party in indefinite suspension offends fair administrative action and legitimate expectation, entitling the court to intervene where discretion is exercised arbitrarily or capriciously.
Whether the termination was unfair and unlawful
Yes - the dismissal was without valid reason, unfair, unlawful and wrongful; the employer failed to discharge its burden under sections 45(2) and 47(5) of the Employment Act.
Section 45(2) requires the employer to prove a valid and fair reason and fair procedure. The respondent's role was limited to verifying numbers, not specifications; the ICT Officer approved the computers and her supervisor exonerated her. No evidence linked her receipt of the 336 computers to any loss. The Disciplinary Board transferred the supervisor but terminated the respondent, which the Court found unfair by all standards.
Whether the respondent was entitled to the withheld half salary
Yes - since there was no valid reason for termination, the suspension was unwarranted and she would have earned full salary and benefits.
Having found no valid reason for the termination, the suspension that preceded it could not stand. Had she not been suspended she would have earned her full salary and attendant benefits during the suspension period, so the withheld half salary was properly awarded by the trial court.
Whether the 12 months' salary compensation award was a proper exercise of discretion
The trial court gave sufficient reasons for maximum compensation, but the Court reduced the award to 10 months' salary as sufficient given the three months already paid in lieu of notice.
Section 49 provides remedies up to a maximum of 12 months' salary. The learned Judge gave reasons: reinstatement was untenable due to statutory limitation and termination was unjustified. Following the principle against interfering with discretion absent misdirection, the award stood. However, weighing the 14 years served, her dutiful rise through the ranks, and that she was already paid three months' salary in lieu of notice, 10 months' compensation sufficed.
Legal principles established
#- Courts may intervene where an internal dispute resolution mechanism is not being pursued rationally or fairly; an employer that keeps an aggrieved employee in indefinite uncertainty as to an appeal cannot later plead non-exhaustion.
- The employer bears the burden of proving both a valid reason and fair procedure for termination; procedural regularity alone does not justify dismissal.
- An appellate court will not interfere with the exercise of judicial discretion unless the judge misdirected himself, arrived at a wrong decision, or was clearly wrong occasioning injustice.
Court orders
#- 1.The appeal is dismissed with costs to the respondent save for the adjusted compensation of 10 months' salary
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court
- Jurisdiction invoked
- First appellate jurisdiction over the ELRC (Article 164(3) of the Constitution - court of equal status hearing appeals; duty as first appellate court to re-evaluate evidence)
Relief refused
#Appellant's request to set aside the judgment and order of the trial court dated 15th April 2015
The appeal was found to be devoid of merit; termination was without valid reason and the suit was not filed prematurely
Appellant's challenge to the 12 months' salary compensation on the basis that no reasons were given
The Court found reasons were advanced, but reduced the compensation to 10 months as sufficient
Costs
The appeal was dismissed with costs to the respondent save for the adjusted compensation of 10 months' salary.
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.
It is rather uncanny, against all forms of fair administrative actions and legitimate expectations, to keep an aggrieved party in indefinite suspension as he or she awaits the outcome of his or her appeal.
We lay emphasis that in as much as the process leading to an employee's dismissal from employment was lawful and adhered to the minimum statutory requirement, the reason behind the termination must also be lawful. This is a burden which the employer must prove.
the court is entitled to intervene in circumstances where discretion is not exercised rationally, fairly and where discretion is exercised arbitrarily, whimsically, capriciously or in flagrant disregard of the rules of natural justice.
In the end, we find and hold that this appeal is devoid of merit. It is accordingly dismissed with costs to the respondent save for the adjusted compensation of 10 months' salary.
Issues in the judgment
#Internal inconsistency in paragraph 45: the text states 'the learned Judge awarded her 12 month's pay in lieu of notice' although the judgment elsewhere records that three months' salary was paid in lieu of notice and the 12 months was compensation for unlawful dismissal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenyatta University v Mola (Civil Appeal 377 of 2018) [2024] KECA 1213 (KLR)", Case Analysis (2024). Court of Appeal at Nairobi (from ELRC Judicial Review/ELRC suit judgment of 15th April 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1213/eng@2024-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.