Terra v Cathorlic Unversity of Eastern Africa (Appeal 744 of 2019) [2025] KEELRC 3029 (KLR)
The bottom line
#Kenya's Employment Court ruled CUEA unlawfully sacked an accountant by ignoring its own HR disciplinary rules, awarding him notice pay, eight months' salary and costs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court has jurisdiction to hear and determine claims arising from contracts for the period 1st December, 2009 to 6th May, 2015
- 2.Whether the claim is premature on grounds of failure to exhaust internal disputes/grievance mechanism
- 3.Whether the claimant's fixed term contract dated 7th May, 2015 terminated after the lapse of three years and the implication of the expiry on the employment relationship
- 4.Whether the termination of the employment of the claimant by the Respondent was wrongful, unfair and unlawful
- 5.Whether the claimant is entitled to the relief sought
- 6.Who bears the costs of this cause
Key legal issues
#Whether termination was wrongful, unfair and unlawful
Yes - the disciplinary process transgressed clauses 14.3.6, 14.3.7 and 14.3.8 of the Respondent's HR Manual, the show cause letter was authored by a Special Advisor rather than the Vice Chancellor, there was no investigation report, and the disciplinary committee composition breached natural justice
The court found procedural defects throughout the disciplinary process. The show cause letter was issued by James Theuri, Special Advisor to the Vice Chancellor, contrary to the mandatory 'shall' in clause 14.3.8 requiring the Vice Chancellor to issue it. No Head of Department letter to the Vice Chancellor existed, no investigation report was produced, and implicated witnesses were not called. Committee members Njiiri and Nyangaresi had prior involvement and altercations with the claimant, creating bias, and only six of fifteen attendees signed the minutes weeks later.
Whether the employer proved loss justifying summary dismissal under section 44(4)(g) of the Employment Act
No - the alleged loss from the part-time lecturers' overpayments was not proved; no audit report was adduced and the burden lay on the Respondent
The claimant was dismissed for exposing the university to unwarranted losses through alleged overpayment of part-time lecturers. No audit report or testimony from the two lecturers was produced. Relying on sections 107 and 109 of the Evidence Act, the court held the burden of proving loss rested on the Respondent, and the failure to tender the investigation report and witness testimony entitled the court to draw an adverse inference against the Respondent.
Whether the Respondent's issues on jurisdiction, prematurity and contract expiry (raised only in submissions) were properly before the court
No - they were not pleaded or raised as timely preliminary objections and were deemed spent
The court noted that the first three issues arose solely from the Respondent's written submissions dated 26th June 2023 and formed no part of the pleadings. The claimant never addressed them. Since they were not clearly raised as preliminary objections at the opportune moment, the court treated them as mere appendices to the termination defence and declined to consider them.
Whether the claimant is entitled to the relief sought
Yes, partially - a declaration of wrongful termination, one month's notice pay and eight months' compensation were awarded
Having found unlawful termination, the court held the claimant entitled to relief. It made the two declarations sought, awarded one month's salary in lieu of notice at Kshs.104,413 and eight months' salary as compensation for unfair termination totalling Kshs.835,304, with interest at court rates, instead of the 12 months' compensation and other heads claimed.
Legal principles established
#- An employer is bound by its own Human Resource Policies and Procedures Manual in the same way employees are bound by it
- Where the disciplinary procedure prescribed in the HR manual is not followed, the termination is procedurally unfair
- A party with custody of evidence who fails to produce it attracts an adverse inference
- An employee cannot be victimized for raising issues at the workplace
Court orders
#- 1.A declaration that the reasons and procedure for termination of the claimant's employment were wrongful, unfair and unlawful
- 2.A declaration that the Respondent's action of withholding failure and/or refusal to pay the claimant's terminal benefits and other dues is unlawful and untenable
- 3.One (1) month's salary in lieu of notice of Kshs.104,413.00
- 4.Eight (8) months' salary as compensation for unlawful termination of employment of Kshs.835,304.00
- 5.Interest on the notice pay and compensation at court rates from the date of judgment till payment in full
- 6.Costs of the cause borne by the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and labour relations jurisdiction under Article 162(2)(a) of the Constitution (ELRC first-instance claim under the Employment Act, 2007)
Relief refused
#12 months' salary as compensation for unfair termination
The court awarded only 8 months' compensation instead of the maximum 12 months claimed
Service pay/payment for 10 years worked of Kshs.1,004,130
Not awarded in the final orders despite being claimed
Underpayment of Kshs.172,807 from 2015 to 2019
Not awarded in the final orders despite being claimed
Unpaid leave allowance of Kshs.132,442
Not awarded in the final orders despite being claimed
Costs
The cost of this cause shall be borne by the Respondent.
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.
I. A declaration be and is hereby issued that the reasons and procedure for termination of the claimant's employment by the Respondent was a wrongful, unfair and unlawful.
iii. One (1) months salary in lieu of notice, ........Kshs.104,413.00.
iv. Eight (8) salary as compensation for employment ......Khs.104,413.00x8....Kshs835,304.00.
v. The cost of this cause shall be borne by the Respondent.
This letter therefore becomes a nullity and is unenforceable.
The composition and conduct of the disciplinary committee come out as an exercise to rid of the workplace of an incorrigible and undesired team mates. It was demonstrably pre-meditated and the process was fait accompli.
I find a case of wrongful, unfair and unlawful termination of employment of the Claimant. On a preponderance of evidence, this surpasses the defence by miles.
Issues in the judgment
#The employment chronology is internally inconsistent - the claimant is said to have been offered employment on 14th December 2009 but engaged on a permanent basis on '22.02 2021', and it is pleaded his salary was never increased from Kshs.48,413.00 while elsewhere Kshs.100,413.00/Kshs.104,413.00 is given
The disciplinary minutes attendance figures are contradictory within the judgment - fifteen members present, but first stated as 16 signatures then six
The show cause letter is variously dated 8th July, 2019 and 20th July, 2019 within the judgment
The hearing date of 29th October, 2024 predates the delivery date of 22nd October 2025 by almost a year without explanation
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Terra v Cathorlic Unversity of Eastern Africa (Appeal 744 of 2019) [2025] KEELRC 3029 (KLR)", Case Analysis (2025). Statement of Claim dated 5th November, 2019 (Cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3029/eng@2025-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.