https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1337

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** (ON Makau J on 20th May 2026) **CAUSE NO. 132 OF 2020** **MERCY NYAMBURA KANYARA…………….…………….….CLAIMANT** **-VERSUS-** **JOMO KENYATTA UNIVERSITY** **OF AGRICULTURE AND TECHNOLOGY……………...** **RESPONDENT** **JUDGMENT** **Introduction** 1. By a Statement of Claim dated 27th February 2020, the Claimant sued the Respondent for unlawful termination of her employment, discrimination, violation of her constitutional rights and prayed for the following reliefs:- 2. ***A declaration that the Claimant suffered unfair and unlawful termination by the Respondent.*** 3. ***An Order for Reinstatement of the Claimant to her previous position without any loss of benefits.*** 4. ***Exemplary damages.*** 5. ***Damages for the mental stress, harassment and discrimination.*** 6. ***Payment of all the lawful terminal dues set up at paragraph 13.*** 7. ***Maximum 12 months compensation or wrongful termination.*** 8. ***Damages for violation of the Claimants Constitutional right to fair labour practices and lawful expectation.*** 9. ***Costs of this suit with interest thereon.*** 10. The Respondent filed a Memorandum of Response dated 12th October 2020 denying liability and prayed for the suit to be dismissed with costs. **Facts of the case** 1. The Claimant was employed by the Respondent on 30th September 2004 as a Senior Assistant Registrar (Legal Affairs) and rose through the ranks to Acting Chief Legal Officer. In 2009 she was deployed to the Jomo Kenyatta University of Agriculture and Technology Enterprises Limited as Substantive Company Secretary reporting to the Managing Director of the company. 2. On 21st September 2010 the Respondent granted the Claimant one year study leave to pursue a pre- doctoral course in entrepreneurship at the same university. It also bonded the Claimant to a three years service upon completion of her studies after completing the pre doctoral course, she embarked on the PHD course and her study leave was extended annually until 30th September 2015. 3. She was to report back to work on 1st October 2015 but she fell ill due to a high risk pregnancy and was put on medical bed rest. Allegedly, the Respondent was made aware of the illness through supply of appropriate medical records. After delivering a health baby boy, the Claimant reported back to work but found that her position of company secretary had been scraped from the establishment and her office space allocated other officers. Her enquiry about the changes elicited no response but she confirmed reporting to work and working from the corner of her office. 4. By a letter dated 9th November 2016, the Respondent informed the Claimant that she would be facing disciplinary process for the offence of absconding her duties. The letter also notified her that her salary would be stopped with immediate effect. She responded on 21st November 2016 explaining the allegations levelled against her and on 20th November she was invited to a disciplinary hearing before a Disciplinary Committee on 23rd June 2017, she was summarily dismissed for absconding duty. **Evidence** 1. The Claimant gave her evidence on 25th April 2023 which basically reiterated the facts summarized above. She contended that she served the Respondent with diligence which earned her promotions and enhanced terms of service. 2. She further testified that she was granted study leave by her employer and she finished her pre doctorate course on time started her PHD course work. By the time her PHD admission letter came, she had already finished her course work. However, her request for allocation of a supervisor was delayed and her study leave expired on 30th September 2015. 3. She testified that she resumed duty on 1st October 2015 but then she noticed that organisational restructuring had been done and her role of company secretary Jomo Kenyatta University of Agriculture and Technology Enterprises was missing. She also found that her office was allocated to other officers despite continued reporting to office she was not assigned any work. Her salary was Kshs. 148,259 plus commuter allowance of Kshs. 14,000 and house allowance of Kshs. 60,256. She was paid basic salary plus house allowance during her study leave and continued until October 2016. 4. She further testified that in 2015, she had a delicate pregnancy and had many sick offs. She was on and off hospital but whenever she was not in the hospital she reported to work. On 16th May 2016, she proceeded on maternity leave for three months and it ended in August 2016. The Respondent paid her medical bill and when she reported back to work in August, she wrote a letter to the Respondent asking for her new born son to provide a cover to him. The request was granted and the Respondent wrote to confirm the same. 5. She further testified that on 17th November 2016 she received a letter dated 9th November 2016, whereby the Respondent notified her that she was deemed to have forfeited her employment through absconding duty and that her case would be forwarded to the Disciplinary Committee of the university council for consideration and determination. The letter also notified her that her salary had been stopped. 6. She testified that, she wrote a letter dated 21st November 2016 giving an elaborate explanation and attached all the relevant documents. He further testified that she appeared before the Disciplinary Committee on 29th November 2016 and presented all the documents before the board. After the hearing on 29th November 2016, she was stopped from accessing the university and she was not paid any salary. On 23rd June 2017, she received a summary dismissing letter citing no reason for the termination. She was not paid anything and therefore she prayed for the orders sought in her statement of claim save for reinstatement which she abandoned. 7. On cross examination she confirmed that she applied for extension of her study leave on 21st August 2015 but it was not approved and she reported back to work. She relied on her staff movement Advice (Page 31 of her bundle) as proof that she reported back from study leave on 1st October 2015. 8. She contended that she fell ill on 6th October 2015 and remained on sick leave until 4th January 2016. She relied on document (Page 32 of her bundle) as proof that the employer was made aware that she was admitted in hospital. She contended that although the documents in Page 33, 34 and 35 were not stamped like the documents in Page 32, they all were sent to the Respondent and she retained copies. Relying on letter dated 11th January 2016 she stated that the doctor had sent the documents to the Respondent. 9. She admitted that the Staff Movement Advice (Page 31) had no signature but she contended that the office copy was duly signed. She further stated that under the new structure there was no indication of the person she was to report to. On being shown the deployment letter dated 21st January 2009, she confirmed that it indicated that she was to report to the Managing Director, but Maintained that as at 2015, there was no one to report to. 10. She contended that when she reported and found her office occupied, she went straight to the Managing Director to say that she had no office to occupy. She admitted that the Staff Movement Advice (Page 31) was her only proof that she reported back from study leave on 1st October 2015. 11. On being shown her own letter dated 1st February 2016, (Page 37) she confirmed that in paragraph 2 she stated that she never reported back on 1st October 2015 due to ill-health and that she had been admitted in Karen Hospital for six days and thereafter she was on sick off. She confirmed also that in paragraph 3 she stated that she reported back on 28th January 2016. She further admitted that from 1st February 2016, she had no sick sheet she then changed her earlier statement on the disciplinary hearing to say that she could not remember whether she appeared before the Disciplinary Committee. 12. In re examination she contended that she never failed to attend work for no reason. She maintained that she filed medical documents from Karen Hospital as proof her sickness. She reiterated that she was served with show cause letter but changed her earlier testimony to say that she never attended the disciplinary hearing on 29th November 2016. Finally she stated that she wrote the letter dated 1st February 2016 (Page 37) while in the office asking to be transferred to the role of teaching. 13. The Respondent called her Registrar of Administration, DR. Rose Githu, who testified as RW1. She adopted her written statement dated 10th May 2021 as her evidence in chief and produced a bundle of 11 documents as exhibits. In brief, her evidence was that the Claimant was dismissed for absconding duty and that due process was followed. She contended the Claimant was served with a show cause latter dated 9th November 2016 and thereafter she appeared before the disciplinary Committee on 29th November 2016 and defended herself against the charges levelled against her. Thereafter she was summary dismissed on 23rd June 2017 in accordance with the Law. Finally she stated that the claimant reported to the Respondents that she had high risk pregnancy which made her unable to resume duty. 14. On cross examination, she confirmed that she does not keep staff records for the Claimant or any other Human Resource records for the staff. She admitted that she was not aware where the information she produced came from. She confirmed that Respondent has Human Resource Director. 15. She reiterated that the Claimant was dismissed for absconding duty but admitted that the minutes of her disciplinary hearing did not indicate her as an attendee. She further confirmed that the minutes were signed on 14th December 2016. She also confirmed that Page 3 is a Report on the Claimant and minutes approved for circulation on 24th April 2017 and confirmed on 21st June 2017. She admitted that she had not filed any other minutes about the Claimant. 16. She admitted that there is no register of attendance or clock in, and affirmed that employees report to the supervisor. She further admitted that there was no schedule of attendance to prove absconding. He contended that the Claimant’s supervisor was the Managing Director and there is report of absconding she got from a third party. She confirmed that she was not Claimant’s supervisor and she was not reporting to her. 17. She admitted being unsure whether the Claimant was entitled to three months notice or salary in lieu of notice. She was also not sure whether the Claimant had accrued leave. She was further not sue whether the Claimant was paid Commuter allowance, House allowance and leave. However, she contended that the Claimant was placed on suspension on half salary but she was not sure whether the Claimant was paid the balance of the salary. 18. In re-examination, she contended that as Registrar of Administration, she was handling administration and Human Resource and the Director of Human Resource reports to her. She further stated that although the list of attendance in the minutes of 29th November 2016 as captured by the Committee did not indicate the Claimant as an attendee, the minutes captures the Claimant as the employee facing the case. Finally she reiterated that the dismissal of the Claimant was justified. 19. After the close of the hearing both sides filed written submissions. The Claimant’s submissions are dated 18th December 2025 while the Respondent’s are dated 15th December 2025. **Determination** 1. Having carefully considered the pleadings, evidence and submissions there is no dispute that the parties herein were engaged in contract of employment from 2004 to 23rd June 2017 when the Claimant was summarily dismissed by the Respondent. The issues for determination are:- 2. Whether the dismissal of the Claimant was unfair/unlawful. 3. Whether she is entitled to the reliefs sought. **Unfair/unlawful dismissal.** 1. Section 45 (1) and (2) of the Employment Act states:- ***“(1).*** ***No employer shall terminate the employment of an employee unfairly.*** ***“(2) A termination of employment by an employer is unfair if the employer fails to prove-*** 1. ***That the reason for the termination is valid;*** 2. ***That the reason for the termination is a fair reason-*** 3. ***Related to the employees conduct, capacity or compatibility; or*** 4. ***Based on the operational requirements of the employer; and*** 5. ***That the employment was terminated in accordance with fair procedure.”*** 6. The foregoing bars the employer from unfairly terminating his employee’s employment. It then sites out two ingredients of unfair termination as the employer’s failure to prove a valid and fair reason for dismissing the employee, and the failure to prove that fair procedure was followed. In this case the court is invited to determine whether the dismissal of the Claimant passed the muster with respect to the said two ingredients. **Reasons** 1. The termination letter never cited any reason for the summary dismissal. The letter is copied below:- ***“TERMINATION OF EMPLOYMENT*** ***The University Council during the 114th meeting held on 29th March 2017 discussed your disciplinary case and resolved that you be summarily dismissed from the University.*** ***Your case as a student will be handled by the University Senate.*** ***By a copy of this letter, the Deputy Vice Chancellor (Finance) is required to stop further payment of your salary and to remove your name from the payroll.*** ***Please arrange to clear with the relevant Departments/Sections of the University so that your rightful dues are calculated and disbursed appropriately*** ***Yours sincerely*** ***Signed*** ***PROF. VICTORIA WAMBUI NGUMI, PhD.,*** ***DEPUTY VICE CHANCELLOR (ADMINISTRATION).”*** 1. The above gap notwithstanding, the parties were in consensus that the reason was absconding duty. The pleadings, evidence and submission pointed to the offence of absconding duty between 1st October 2015 and 9th November 2016 when a notice of forfeiture of employment and stoppage of salary was communicated to her. The question begging for answer is whether the Respondent has proved the alleged absconding of duty by the Claimant. 2. RW1 testified that the Claimant’s study leave ended on 30th September 2015 but she failed to report back on 1st October 2015 and further failed to communicate her whereabouts. She further stated that the Claimant had confirmed by a letter dated 1st February 2016 that she never reported back to work on 1st October 2015. 3. The Claimant pleaded in paragraph 6 of her statement of claim that she “was to report back to work on 1st October 2015 but she fell ill due to a high risk pregnancy and was put on medical bed rest,” further that she made the employer aware by supplying documents. In paragraph 7, she averred that she reported back to work after her sick off and found her office occupied by other officers and upon enquiry, no response was elicited. 4. During the hearing, she admitted that she wrote the letter dated 1st February 2016 requesting for change of roles. Paragraph 2, 3 and 4 of the letter stated that:- ***“ I could not report back to office on 1st October 2015 due to health reasons. I was in Karen Hospital for 6 days and thereafter I was on sick off.*** ***When I reported back to office on 28th January 2016, I found that the office I occupied before I proceeded on study leave had been allocated to other Jomo Kenyatta University of Science and Technology officers due to scarcity of office at Jomo Kenyatta University of Science and Technology. I also noted that the position of company secretary does not exist in the organizational structure of Jomo Kenyatta University of Science and Technology hence, left without any duties or responsibilities at the Jomo Kenyatta University of Science and Technology.*** ***With these facts, I hereby request for the transfer from being a non- academic staff to academic staff in Jomo Kenyatta University of Science and Technology Karen campus, where my skills would be utilized rather than staying idle at Jomo Kenyatta University of Science and Technology.”*** 1. The above letter is clear that the Claimant did not report back to office until 28th January 2016. In her own words, the Claimant indicated 28th January 2016 as the day when she reported back to the office and discovered that her office had been allocated to other officers, and that her position had been scraped from the Respondents organogram. 2. The Claimant has produced medical certificate and sick off documents covering the period between 7th October 2015 and 27th January 2016. Although the Respondent alleged that it was not made aware of the Claimant’s ill-health, the medical certificate from Karen Hospital dated 6th October 2015 was received and stamped by the Respondent. Again there is a letter by the Respondent’s Acting Medical Officer, Mr. Amos Mwai dated 1st January 2016 to Dr. George W. Mbidde of Nairobi Hospital referring the Claimant to the doctor for consultation and management and for his findings, opinion and future follow up plan. 3. The Claimant was seen by Dr. Bidde and he gave her 2 weeks sick off due to her medical conditions. In the circumstances I reiterate that the Claimant has demonstrated by evidence that the Respondent was indeed aware of her ill-health. She has also demonstrated by the letter dated 1st February 2016 that she reported to work on 28th January 2016 and found her office occupied and her position redundant. She requested for transfer to academic role of teaching but no response was made. 4. She contended that she kept reporting to work and sitting at a corner of her office but no duties were assigned until she proceeded om maternity leave from 11th May 2016. No doubt that she delivered a baby and the Respondent added him in the Insurance scheme as acknowledged by letter dated 29th August 2016. 5. The Claimant contended that she reported back to work in August 2016 and received show cause letter on 9th November 2016. RW1 confirmed that there is no signing of attendance register or electronic clocking in. The burden of proof was on the employer to prove that the Claimant absconded duty, but there is no evidence to support the alleged absconding between August and 29th November 22016 when disciplinary hearing was scheduled. 6. In view of the foregoing analysis, I am of the view that the Claimant has demonstrated that she failed to attend work from 1st October 2015 to 27th January 2016 for a good cause, namely, ill-health and the Respondent was made aware of it. There is also evidence that from 28th January 2016 to 11th May 2016 the Claimant was on duty and after which she went on maternity leave for three months upto August 2016. Finally there is unrebutted evidence that she reported back to work in August and worked until she was suspended as admitted by RW1. The Respondent also voluntarily paid her full salary until 17th November 2016 when it served her with a letter date 9th November 2016 stopping her salary. 7. I have noted that the Respondent was not specific about the days when the Claimant allegedly absconded duty. The allegation was generalized and that is why it was heard for it to substantiate or even to cite it in the dismissal letter. Secondly, the Respondent did not deny the Claimant’s allegation that her position was scrapped from the organizational structure and therefore her service were now superfluous. She had nothing to so and that is why she wrote to request for transfer to academic duties of teaching. 8. In view of all the findings and observations made above, I proceed to hold that the Respondent has failed to prove a valid reason for dismissing the Claimant. In my view, carrying a high wish pregnancy is not misconduct and therefore not a valid ground for dismissal and especially where the employer has been made aware of the employees condition. It is a good cause for absence from duty so long as the employer is notified. As I have already noted the Respondent was made aware of the Claimants predicament. **Procedure** 1. The Claimant contended that the procedure followed was not fair. Section 41 of the Employment Act provides that:- ***“(1) Subject to section 42(1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.*** ***(2) Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1), make.”*** 1. In this case, the Claimant was served with a letter dated 9th November 2016 notifying the Claimant that she was deemed to have forfeited her employment by absconding duty. The letter also stopped her salary and she responded in writing denying the alleged absconding. Thereafter she was invited to a disciplinary hearing before a Staff Disciplinary Committee and she admitted under oath that she attended the hearing on 29th November 2016. 2. RW1 produced the minutes of the hearing on Page 13 to 16 of Respondent’s first bundle which is about Claimant’s case. The Resolution of the Committee was that:- ***“ 1. That the Director of Board of Post Graduate studies and Director of Nairobi CBD Campus to provide a comprehensive report on Ms. Mercy Kanyara studies from 2010 to 30th September 2015.*** ***2. That a special Disciplinary Committee to be convened to make a conclusive decision once the report is submitted.*** ***3. That her salary remains withheld until her case is concluded.”*** 1. The above resolution was in my view, not conclusive as the committee recommended for a special Disciplinary Committee to be convenced. The Respondent did not adduce evidence to prove that the case was heard by the proposed Special Committee and a decision rendered. All that she produced was minutes of the University Council held on 29th March 2017 where it observed that report on the Claimant requested by the staff Disciplinary Committee were received from the Managing Director Jomo Kenyatta University of Science and Technology Enterprises, the Director of Post graduate studies and the Director of Nairobi CBD Campus. 2. The reports were allegedly presented to the Human Resource Committee and they allegedly indicated among others, that the Claimant had not attended work since August 2015 when her study leave expired. The council further noted that the University Senior Management recommended for dismissal of the Claimant and her admissions to PHD in entrepreneurship be revoked. In view of the said reports the council approved the recommendation by the Human Resource Committee for summary dismissal of the Claimant but referred her case of the PHD programme to the University Senate for approval. 3. The foregoing evidence is clear that the Claimant was not accorded a fair hearing. I say so because the second part of the hearing was conducted in her absence, and new documentary not availed to her were used to condemn her. When the Staff Disciplinary Committee referred the hearing to a special Committee, the employer was bound to do so or just refer the case back to the Staff Disciplinary Committee to complete the hearing. 4. By referring the matter to Human Resource Committee and Senior Management for adverse recommendation without according her a hearing was definitely contrary to rules of natural justice, and Section 41 of the Employment Act and therefore unfair. The procedure was also contrary to Clause 9.4. (1) of the Collective Bargaining Agreement which provided for hearing before a Committee appointed by the council with powers to terminate for a good cause. 5. The aforesaid clause does not provide for multiplicity of committees to hear the case but only one committee with the power to terminate. Since the Disciplinary Committee did not complete the hearing it was incumbent upon by the employer to ensure fair hearing was held and concluded with a decision based on all the evidence collected during the said hearing. 6. The failure to observe fair hearing violated the Claimants right to fair administrative action, fair hearing and fair Labour practices as guaranteed under Article 41, 47 and 50 of the Constitution. It also violated Article 236 of the Constitution that protects public officers from dismissal without due process law. 7. Having found the dismissal of the Claimant was not grounded on valid and fair reason and that fair procedure was not followed, I hold that the dismissal was unfair within the meaning of Section 45 of the Employment Act. **Reliefs** 1. In view of the forgoing conclusion, I find the Claimant is entitled to declaration that she suffered unfair and unlawful termination of her employment. Accordingly she is entitled to reliefs under Section 49 of the Ac including compensation for unfair termination plus salary in lieu of notice. Clause 9.1. (1) provided for termination notice of three months and therefore I award her the same as prayed. 2. As regards compensation, the Claimant served for over ten years without any warning letter and she was dismissed for no valid reason. Consequently, I award her seven months gross salary for the unfair termination. 3. She also prayed for salary for October 2016 to June 2017 and I allow it since she was still in employment and could not look for alternative job pending determination of her disciplinary case, which was concluded by letter dated 23rd June 2017. Consequently, I award the salary for seven months and 23 days. 4. The Claim for commuter is declined because the Claimant was on suspension but House allowance for 7 months 23 days is awarded. 5. As regards damages for violation of Constitution, I wish to state that the said violation have been compensated under Section 49 above and therefore I decline to make further award on the same violation that rendered the termination unfair and unlawful. **Conclusion** 1. I have found that the dismissal of the Claimant was unfair and unlawful. I have further found that the Claimant is entitled to damages under the statute and her contract. Consequently, I enter Judgment for her against the Respondent as follows:- 2. Declaration that the Respondent unfairly or unlawfully terminated the Claimant’s employment. 3. The Respondent to pay her the following:- 4. Notice……………………..Kshs. 444,777/- ii) Salary arrears……………..Kshs. 1,151,478.23/- iii) House allowance……………Kshs. 467,988.26/- iv) Compensation…….. ……..Kshs. 1,557,605/- **Total…………………………….Kshs. 3,621,848.49/-** 1. The award is subject to statutory deductions. 2. Since the suit has succeeded, I award costs to the Claimant plus interest at court rate from the date of Judgment till payment in full. **DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 20TH DAY OF MAY, 2026.** **ONESMUS MAKAU** **JUDGE** **Appearance:** Mandala for Guserwa for Claimant Macharia for Respondent