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ELRCAllowedNot stated in excerpt (ELRC Claim, Nairobi)· [2023] KEELRC 2516 (KLR)

Musyoka v Kenyatta University (Cause 785 (B) of 2015) [2023] KEELRC 2516 (KLR)

Employment and Labour Relations Court
12 October 2023
MNMathews N. Nduma
2,364 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled Kenyatta University unfairly fired a cleaner over unproven bribery claims, awarding her over Kshs.2.1 million.

What this practically means

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Executive summary

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The claimant, a cleaner employed by the respondent from 1st July 1990 at a monthly basic salary of Kshs.17,466, was suspended on 3rd April 2014 on half salary over allegations of extorting and soliciting bribes of Kshs.1,000 to Kshs.3,000 from casuals seeking appointment or renewal, and was summarily dismissed on 23rd March 2015 after proceedings before the junior Board of Discipline. She claimed the dismissal was malicious, that she was denied an opportunity to defend herself, and sought twelve months' salary compensation, notice pay, twenty-four years' service pay, leave pay, unpaid salary and CBA arrears. The respondent, through RW1 Ndiritu Gikaria, Registrar in charge of Administration, maintained the dismissal was lawful and fair, alleging overwhelming evidence of gross misconduct. The Court applied Sections 43 and 47(5) of the Employment Act, holding the employer bore the burden of proving a valid and fair reason. It found the respondent relied wholly on hearsay: the Registrar's report was unsubstantiated, no disciplinary minutes or investigation records were produced, no witnesses testified before the junior board, and the claimant was denied the chance to confront her accusers. The dismissal was held unlawful and unfair, in violation of Sections 36, 41, 43 and 45. Considering her 24 years of unblemished service, lack of contribution to the dismissal, and advanced age without alternative employment, and applying Mary Chemweno Kiptui v Kenya Pipeline Company Limited, the Court awarded maximum compensation of twelve months' salary (Kshs.460,212) plus terminal benefits of Kshs.1,683,978, totaling Kshs.2,144,190, with interest at court rates from the date of judgment and costs of the suit.

Key legal issues

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01

Proof of reason for termination

Holding

The respondent had no valid reason to summarily dismiss the claimant; the investigation report was unsubstantiated hearsay with zero probative value.

Reasoning

Under Sections 43(1) and 45, the employer must prove the reason for termination and its validity. The respondent relied on a report by the Registrar to the Vice Chancellor alleging bribery, but the sources were unnamed and the claimant was denied the chance to confront her accusers. No disciplinary minutes, investigation report initially, or evidence of actual bribe-taking was placed before the Court, so the dismissal rested on non-credible and inadmissible evidence.

p. 4
02

Procedural fairness under Section 41

Holding

The disciplinary process violated Section 41; the claimant had no opportunity to state her case or confront accusers.

Reasoning

No record of the proceedings before the junior Board of Discipline was produced; RW1 admitted no witness other than the claimant testified and that there were no minutes showing she met or confronted her accusers. The hearing was based on hearsay, with the claimant merely asked to answer true or false. The process therefore failed the Section 41 requirements of fair hearing before summary dismissal.

p. 5
03

Quantum of compensation and terminal benefits

Holding

Maximum compensation of 12 months' salary plus terminal benefits per the CBA awarded.

Reasoning

Having served 24 years without a blemish or written warning, contributed nothing to the dismissal, and being unable to secure alternative employment due to advanced age, the claimant qualified for maximum compensation under Section 49(1)(c) and (4). Following Mary Chemweno Kiptui v Kenya Pipeline Company, the Court awarded 12 months' salary (Kshs.460,212) plus Kshs.1,683,978 terminal benefits under the CBA.

p. 5

Legal principles established

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  • An employer bears the burden under Section 43 of the Employment Act to prove the reason for termination, and under Section 45 to show the reason was fair and valid; an employer relying on hearsay without giving the employee an opportunity to confront accusers has not discharged that burden.

Court orders

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  1. 1.Judgment entered in favour of the claimant against the respondent
  2. 2.Kshs.460,212 in compensation (12 months' salary)
  3. 3.Kshs.1,683,978 in terminal benefits (notice pay Kshs.115,053; leave Kshs.46,551; unpaid salary April 2014-March 2015 Kshs.460,212; CBA salary arrears 2013-2017 Kshs.141,738; 24 years' service pay Kshs.920,424)
  4. 4.Total award of Kshs.2,144,190
  5. 5.Interest at court rates from date of judgment till payment in full
  6. 6.Costs of the suit to the claimant
Jurisdiction invoked
Employment Act (Act No. 11 of 2007), Sections 36, 41, 43, 45, 47(5), 49(1)(c) and (4)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Musyoka v Kenyatta University (Cause 785 (B) of 2015) [2023] KEELRC 2516 (KLR)", Case Analysis (2023). Not stated in excerpt (ELRC Claim, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2516/eng@2023-10-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.