Sankale v Masai Mara University; Transparency International Kenya & 2 others (Interested Parties) (Employment and Labour Relations Petition E097 of 2021) [2024] KEELRC 1741 (KLR)
The bottom line
#Kenya's Employment Court ruled Masai Mara University illegally fired an accountant for exposing corruption, awarding him 12 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 Petitioner was entitled to be protected as a whistleblower
- 2.Whether the Petitioner's dismissal was unfair and due to his role as a whistleblower
- 3.Whether the Petitioner is entitled to the reliefs sought
Key legal issues
#Whether the Petitioner was entitled to whistleblower protection
Yes. The Petitioner was recognised as a whistleblower following the televised 'Mara Heist' expose and was entitled to protection from retaliation under ACECA s.65, Bribery Act s.21 and the UN Convention Against Corruption as incorporated by Article 2(6) of the Constitution.
The Court found the Respondent itself acknowledged the Petitioner's whistleblowing role, even promoting him to Acting Chief Internal Auditor. CID correspondence referencing interference of witnesses at the university showed the whistleblower was targeted. International conventions ratified by Kenya form part of Kenyan law, reinforcing the protective framework.
Whether the summary dismissal was unfair and retaliatory
Yes. The dismissal was both substantively and procedurally unfair and the 10-month delay from the September 2020 meeting to the June 2021 dismissal reasonably pointed to retaliation for whistleblowing.
The Respondent failed to substantiate the grounds of gross misconduct under sections 43 and 47(5). No warning letter, show-cause letter or disciplinary hearing was issued; the 1st September 2020 meeting was not a disciplinary hearing. Reliance on section 44(4) failed because the alleged gross misconduct was not proved. The Court applied Janet Nyandiko and Macha Isunde on mandatory section 41 compliance.
Whether reinstatement was available
No. Reinstatement was refused because the relationship had irretrievably broken down and the Petitioner's position had been filled.
Although reinstatement is available under section 49(3)(a), the Petitioner had tendered a resignation which the Respondent neither accepted nor acknowledged, and the Respondent deposed that the position had since been filled. Compensation was the appropriate remedy.
Jurisdiction and abuse of process objections
Jurisdiction was upheld because an employer-employee relationship was not disputed; the sub judice/abuse objection failed because the Nakuru suit had been dismissed and its decision was not placed before the Court.
The Respondent's objection that the Court could not adjudicate corruption matters was set aside as there was no dispute that the claim arose from employment. The abuse-of-process argument failed because the Respondent could have raised it earlier and the Nakuru decision was never exhibited.
Legal principles established
#- A whistleblower is entitled to protection from retaliation under section 65 of the Anti-Corruption and Economic Crimes Act, 2003 and section 21 of the Bribery Act, 2016
- Termination must satisfy both substantive and procedural fairness, and even summary dismissal must comply with section 41 of the Employment Act
- An employer bears the burden of proving valid and fair reasons for dismissal under sections 43 and 47(5) of the Employment Act; unsubstantiated grounds cannot sustain a dismissal
- Dismissing an employee for whistleblowing offends the national values of accountability and prudent use of public funds and warrants the maximum compensation under section 49 of the Employment Act
Court orders
#- 1.Damages for unfair termination of 12 months' salary: Kshs. 3,100,716/= (12 x 258,393/=)
- 2.Issuance of a certificate of service to the Petitioner
- 3.The award shall be subject to taxes and statutory deductions
- 4.Costs and interest 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 founded on the employer-employee relationship and constitutional labour rights (Articles 41 and 236 of the Constitution)
Relief refused
#Reinstatement to employment without loss of benefits
The employment relationship had irretrievably broken down and the position had since been filled
Damages for continuous injury for the last 12 months (harassment and degrading treatment)
Employment contracts are finite and end by termination or other events; the claim was rejected
Declarations of violation of Articles 28, 29, 47, 50, 236 and of ACECA s.65 and Bribery Act s.21 as standalone constitutional/statutory declarations
The petition was determined as an unfair termination claim and compensation awarded instead; no separate declarations were issued
Costs
Costs of the suit awarded to the Petitioner, together with interest on the award
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.
The Petitioner was therefore entitled to protection from retaliation as provided for under Section 65 of the ACECA 2003 as well as Section 21 of the Bribery Act,2016 which prohibits intimidation and harassment.
The fact that the Petitioner was dismissed some 10 months after the said meeting reasonably leads to the conclusion that the main reason was due to the Petitioner's whistleblowing role. The Respondent literally wanted to silence the Petitioner.
In this case section 41 was never adhered to. Even in cases of summary dismissal the courts have maintained that section 41 of the Employment Act must be adhered to.
In conclusion the Petitioner's Amended Petition is hereby allowed as follows: a. Damages for unfair termination 12 months x 258,393/= Kshs. 3,100,716/= b. Certificate of service c. Item (a) shall be subject to taxes and statutory deductions. d. Costs and Interests
Issues in the judgment
#The judgment inconsistently labels the Petitioner as 'Claimant' in a key holding paragraph
The Respondent cites the parallel Nakuru suit as ELRC Cause No E39 of 2021 in one passage and E039 of 2021 in another, and the judgment does not record whether the Petitioner was accompanied by fellow interested parties' designations in the caption
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kamunyu v Ndegwa & 2 others (Employment and Labour Relations Petition E013 of 2025) [2025] KEELRC 2914 (KLR)[2025] KEELRC 2914 (KLR)22 Oct 2025
Cite this brief
#Cite this brief
Caselaw, "Sankale v Masai Mara University; Transparency International Kenya & 2 others (Interested Parties) (Employment and Labour Relations Petition E097 of 2021) [2024] KEELRC 1741 (KLR)", Case Analysis (2024). ELRC Petition E097 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1741/eng@2024-07-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.