Barno v Jaramogi Oginga Odinga University of Science & Technology (Cause E064 of 2025) [2026] KEELRC 2278 (KLR) (30 July 2026) (Judgment)

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT *&* LABOUR RELATIONS** **COURT OF KENYA AT KISUMU** **CAUSE NO. E064 OF 2025** ANDREW KIPLAGAT BARNO.................................................**CLAIMANT** **VERSUS** JARAMOGI OGINGA ODINGA UNIVERSITY OF SCIENCE *&* TECHNOLOGY.............…**RESPONDENT** **JUDGMENT** 1. Mr. Andrew Kiplagat Barno (the Claimant) was employed by Jaramogi Oginga Odinga University of Science and Technology (the Respondent) from 3rd June 2021 as Human Resource and Training Manager for a project dubbed Boresha Jamii run by the Respondent but funded by USAID. His starting salary was Kshs. 450,000/- but was reviewed to Kshs. 610,000/-. He stated that on 27th July 2022 he reported to work normally and was asked to join a management board meeting chaired by the Respondent’s Deputy Vice Chancellor, wherein he was told to proceed on suspension. He averred that on 13th July 2022 he received an email from the Registrar (Planning and Administration) instructing him to attend a disciplinary hearing on 18th July 2022. On 22nd July 2022 his employment was terminated. On 25th July 2022 he lodged an appeal which upheld his termination of employment on 15th August 2022. According to the Claimant the dismissal was without reason and adherence to procedure. Moreover, he avers that he was never paid his terminal dues and was subjected to humiliation because at the time he had taken a Kshs. 4,000,000/- loan from Barclays Bank. Consequently, he seeks the following reliefs: * + 1. A declaration that his termination of employment was unfair and unlawful; 2. Kshs. 7,320,000/- in 12 months’ salary compensation; 3. Kshs. 610,000/- in unpaid salary during the suspension period; 4. Kshs. 610,000/- in one months’ salary in lieu of notice; 5. Kshs. 600,000/- in compensation for unused leave days; 6. Kshs. 1,000,000/- in damages for embarrassment, emotional and marital breakdown; 7. Kshs. 4,000,000/- in unpaid bank loan; 8. Kshs. 1,600,000/- in unpaid Sacco loan; 9. Certificate of service; 10. Costs and interests of the suit; and 11. Any other relief the court may deem fit to grant. 2. Opposing the claim the Respondent filed a Response to Memorandum of Claim dated 30th September 2025. It acknowledged the Claimant’s employment but denied that he served diligently. It also denied that the termination of his employment was without reason and did not follow the right procedure. In conclusion it generally denied the averments in the Memorandum of Claim and invited the Claimant to strict proof thereof. In addition, it maintains that it has already issued a certificate of service. Consequently, it urges the Court to dismiss the suit with costs. After close of hearing parties filed written submissions. Claimant’s Submissions 1. In support of his claim the Claimant identifies the following issues for determination: * + 1. Whether he was an employee of the Respondent within the meaning of section 2 of the Employment Act, 2007, and thus entitled to the protections under the Act; 2. Whether the termination of his employment contract was procedurally fair; 3. Whether the termination of his employment contract was substantively unfair within the meaning of section 45 of the Employment Act, 2007; and 4. Whether he is entitled to the remedies sought. 2. On his employment status, the Claimant submits that he was an employee within the meaning of section 2 of the Employment Act. He relies on the letter of offer dated 3rd June 2021, the terms and conditions of employment issued on the same date, the salary review letter dated 1st August 2021, and the termination letter dated 22nd July 2022 as direct evidence of an employment relationship. He also cites the case of **Fredrick Byakika *v* Mutiso Menezes International Unlimited [2016] eKLR**, where the Court held that the existence of an employment relationship is determined by the intention of the parties, the contract, and the practical realities of the relationship, and **Stanley Mungai Muchai *v* National Oil Corporation of Kenya [2012] eKLR**, where the Court applied the integration and control tests in determining whether a contract of service existed. 3. On procedural fairness, the Claimant submits that the Respondent failed to comply with the mandatory procedural requirements under section 41 by failing to provide adequate notice of the disciplinary process, failing to disclose the specific allegations against him, and failing to accord him a meaningful opportunity to prepare and present his defence. Reliance is placed on **Levoi *v* Forum for African Women Educationalists Kenya (FAWEK) [2024] KEELRC 13492 (KLR)**, where the Court held that a rushed disciplinary process violated section 41 and rendered the termination procedurally unfair. The Claimant also relies on **Dr. Joel Imbisi *v* Kenyatta University [2025] KEELRC 1516 (KLR)**, which adopted **Hawkins Ouma *v* Faulu Microfinance Bank Ltd [2023] KEELRC 2809 (KLR)**, for the proposition that an employer must provide full particulars of the allegations before disciplinary proceedings are conducted. He highlights the fact that he was merely invited to what was described as a disciplinary meeting through an email sent only five days earlier, but the invitation merely referred to “gross misconduct” without setting out the particulars of the allegations. He further points to the fact that the Respondent produced no minutes, attendance records, or other evidence demonstrating that a disciplinary hearing was actually conducted. 4. On substantive fairness the Claimant submits that the Respondent failed to establish any valid or fair reason for terminating his employment, contrary to section 45 of the Employment Act. He asserts that although section 44(4) of the Act identifies conduct that may amount to gross misconduct, the Respondent did not specify any such conduct in the termination letter, nor did it produce investigation findings or evidence proving the alleged misconduct. The Claimant relies on **Walter Ogal Anuro *v* Teachers Service Commission [2013] eKLR**, where the Court held that a fair termination requires both substantive justification and procedural fairness, and **Thomas Barkasiam Miningwo *v* Egerton University [2015] KEELRC 1416 (KLR)**, which affirmed that an employer must establish a valid and fair reason for termination. 5. On whether the Claimant is entitled to the remedies sought the Claimant submits that, having established both procedural and substantive unfairness, he is entitled to the remedies provided under section 49 of the Employment Act. He contends that the abrupt termination caused severe financial hardship, loss of creditworthiness, inability to service bank and SACCO loans, emotional distress, and the breakdown of his marriage. He argues that these losses were a direct and foreseeable consequence of the Respondent’s unlawful conduct and that the Court should exercise its equitable jurisdiction to award aggravated damages. Consequently, he urges the court to allow the claim as prayed. Respondent’s Submissions 1. The Respondent identifies the following issues for determination: * + 1. Whether the Claimant’s termination was justifiable, lawful, fair and legal; 2. Whether the Claimant is entitled to the reliefs sought; and 3. Who should bear the costs of the suit. 2. On the first issue, the Respondent submits that the termination of the Claimant’s employment was both substantively justified and procedurally fair. It relies on **Walter Ogal Anuro *v* Teachers Service Commission [2013] eKLR**, where the Court held that a fair termination must satisfy both substantive justification and procedural fairness. The Respondent contends that the Claimant was suspended on valid grounds of negligence, incompetence, and disobedience of lawful instructions. It is submitted that the Claimant failed to comply with recruitment procedures, failed to address gaps in staff documentation, failed to forward recruitment documents, developed clearance forms and appointment letters without approval or the prescribed format, issued appointment letters to wrong persons, and incorrectly computed leave days, thereby causing the University a financial loss of Kshs. 137,573/-. 3. The Respondent submits that a meeting was held with the Claimant on 27th June 2022, during which he was informed of the allegations against him. Thereafter, he was suspended by a letter dated 24th June 2022 pending disciplinary proceedings. The Claimant was subsequently invited to a disciplinary hearing scheduled for 18th July 2022 through a letter dated 8th July 2022, which was accompanied by a charge sheet setting out the allegations and their particulars. The Respondent maintains that the Claimant had more than seven days to prepare his defence and did not request access to any office records or emails to assist in his defence. It is further submitted that the disciplinary hearing was conducted, the Claimant was found guilty of gross misconduct, negligence, and incompetence, and his employment was terminated. He was also afforded an opportunity to appeal, and the decision of the disciplinary committee was upheld on 15th August 2022. The Respondent therefore urges the Court to find that the termination was lawful, fair, and justified. 4. On whether the Claimant is entitled to the reliefs sought, the Respondent submits that no compensation is payable because the termination was lawful and fair. In the alternative, and without prejudice, it argues that if the Court were to find the termination unfair, compensation should be limited to one month’s salary. Reliance is placed on **Musungu *v* Babs Security Limited [2025] KEELRC 2067 (KLR)**, where a claimant who had served for approximately one year was awarded four months’ salary as compensation. 5. On salary during suspension the Respondent submits that the Claimant failed to prove entitlement to salary during suspension. It relies on **Farida Ali Kibwana *v* Nairobi City County [2018] KEELRC 1470 (KLR)**, where the Court declined a similar claim because the claimant had not demonstrated any contractual or policy provision entitling her to payment during suspension. On salary in lieu of notice, the Respondent submits that the termination complied with the law and contractual procedure; consequently, the claim for one month’s salary in lieu of notice is not available. 6. On gratuity, the Respondent submits that, if payable, it should be calculated at 10% of the gross salary under the employment contract. Without prejudice, it suggests that an award of Kshs. 61,000/- would be appropriate if gratuity were to be awarded, but argues that gratuity should be declined because the termination arose from the Claimant’s own negligence and disobedience. On accrued leave, the Respondent submits that the Claimant did not prove that he applied for leave and was denied leave. It relies on **Togom *v* Radar Limited (Employment and Labour Relations [2024] KEELRC 112 (KLR)**, where the Court held that, in the absence of evidence that leave was sought and denied, the claim for unpaid leave could not succeed. 7. On damages for embarrassment, emotional distress and marital breakdown the Respondent submits that this head of claim has no statutory or legal foundation and was not supported by evidence. It contends that such damages are unavailable in the circumstances and that awarding them would improperly reward the Claimant despite his negligence and disobedience. On compensation for unpaid loans, the Respondent similarly submits that they are unsupported by any legal basis or evidence and should be dismissed. 8. On the certificate of service, the Respondent submits that it was issued in compliance with section 51 of the Employment Act, highlighting the certificate dated 14th December 2023. It relies on **Transport Workers Union *v* African Safari Diani Adventure [2013] eKLR**, where the Court held that a certificate of service is a statutory right of every employee irrespective of the circumstances of separation. On costs the Respondent submits that costs should follow the event and be awarded to the successful party. It relies on **Party of Independent Candidate of Kenya *v* Mutula Kilonzo *&* 2 others [2013] eKLR**, where the Court reaffirmed that, although the award of costs is discretionary, the general rule is that costs follow the event unless good reason exists to depart from that principle. Accordingly, the Respondent urges the court to dismiss the suit with costs. Disposition 1. The Claimant was an employee of the Respondent at the time of termination of employment. It therefore does not fall for determination whether he was an employee in terms of section 2 of the Employment Act. The Court identifies the following issues for determination: Whether the Claimant’s termination was justifiable, fair and lawful; Whether the Claimant is entitled to the reliefs sought; and Who is to bear the costs of the suit. 1. The Claimant asserts that the Respondent failed to comply with the mandatory procedural requirements under section 41 by failing to provide adequate notice of the disciplinary process, failing to disclose the specific allegations against him, and failing to accord him a meaningful opportunity to prepare and present his defence. The Respondent on its part asserts that a meeting was held with the Claimant during which he was informed of the allegations against him. Thereafter, he was suspended by a letter dated 24th June 2022 pending disciplinary proceedings. The Claimant was subsequently invited to a disciplinary hearing scheduled for 18th July 2022 through a letter dated 8th July 2022, which was accompanied by a charge sheet setting out the allegations and their particulars. The Respondent maintains that the Claimant had more than seven days to prepare his defence and did not request access to any office records or emails to assist in his defence. A disciplinary hearing was conducted, the Claimant was found guilty of gross misconduct, negligence, and incompetence, and his employment was terminated. The Claimant was also afforded an opportunity to appeal, and the decision of the disciplinary committee was upheld on 15th August 2022. 2. Against this backdrop, was there a failure to adhere to the provisions of section 41 of the Employment Act? The Claimant did not seek time to access documents reposed in the Respondent’s office or systems. He never complained that the period given for the responses sought was too short. Neither did the Claimant assert to the Respondent that the charges levelled against him for misconduct were vague. The Claimant was heard, given a chance to offer a defence and upon his termination was offered a chance to appeal. He did indeed appeal and the appeal was determined albeit, not in his favour. The Court returns on the question as to whether the Claimant’s termination was justifiable, fair and lawful; that it was in keeping with the law and therefore justifiable in terms of section 43 and 45 of the Employment Act. 3. The question as to whether the Claimant is entitled to the reliefs sought, the Court returns that he is not. On costs the Court orders that each party shall bear their costs for the reason that the Claimant has suffered financially upon termination of his employment by the Respondent. Imposing costs would further impoverish him and in my discretion, I decline to order any costs. Suit dismissed with no order as to costs. It is so ordered. **Dated this 30th day of July 2026 and delivered on 31st July 2026** **Nzioki wa Makau, MCIArb.** **JUDGE**