https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1726

Mwangi v Jomo Kenyatta University of Agriculture and Technology (Employment and Labour Relations Cause E552 of 2019) [2026] KEELRC 1726 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1726 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Cause E552 of 2019 JW Keli, J June 19, 2026 Between Francis Irungu Mwangi Claimant and Jomo Kenyatta University of Agriculture and Technology Respondent Judgment 1.The claimant upon dismissal from employment, filed a statement/memorandum of claim dated 22nd August 2019 and sought for the following relief against the respondent-a.That the Honourable Court be pleased to declare that the termination of the Claimant by the respondent was unlawful.b.That the Honourable Court be pleased to order that the Claimant be reinstated to his previous employment with the Respondent with no loss of benefits or emoluments.c.That the Honourable Court be pleased to award the Claimant the monthly salary and CBA arrears paid out in November 2017. Salary arrears be from November, 2017 (the date when the Respondent halted the Claimant’s salary) until the date of Judgment.d.That in the alternative the Honourable Court be pleased to award the claimant 12 months' compensation/damages for wrongful and unfair termination.e.The Honourable court be pleased to award salary in lieu of notice.f.That the Honourable Court be pleased to award the Claimant general damages for leave days not taken.g.That the Honourable Court be pleased to award exemplary and General Damages.h.Interest on the sums claimed above from the date of filing this cause in Court.i.Certificate of Service.j.Costs of this cause.k.Such further orders and/or relief as this Court may deem just and fit to award. 2.The Claimant’s claim was accompanied by his witness statement dated 25th November 2019; and list of documents dated 22nd November 2019 with the bundle of documents attached. 3.In response to the claim, the Respondent entered appearance on 6th September 2019 through the law firm of Mukele Moni & Company Advocates, and filed a statement of response dated 13th November 2019. In support of his response, the Respondent filed a list of witnesses dated 13th November 2019; witness statement of Rose M. Ndegwa filed on14th November 2019; and a list and bundle of documents dated 13th November 2019 with the bundle of documents attached. 4.To counter the Respondent’s case, the Claimant filed a Reply dated 22nd November 2019. The Claimant’s case in summary 5.The Claimant’s case is that he was employed by the Respondent vide a letter dated 22nd June 2006 on a 6-month contract as an assistant clerk of works-grade 8 in the Estate department. By another letter dated 2nd January 2007, the contract was renewed for another 6 months, and the Claimant was employed on permanent and pensionable terms vide another letter dated 9th February 2007, before his second 6-month contract expired. Subsequently, through a letter dated 29th December 2010 the Claimant states that he was promoted to Clerk of Works II-Grade 9. 6.It is averred that despite executing his roles and responsibilities in accordance with the Contract of Employment and the Respondent's staff/employer-employee code of ethics and regulations thereunder, the Claimant was issued with a letter dated 31st May 2017 by the Respondent through the DVC (Administration) purporting to transfer him to the Respondent’s Karen Campus. He was now required to report to two distinct personnel, one in Karen, the other in Juja. The Claimant states that the Karen campus located in Karen area of Nairobi is different from the office of university projects, and is headed by a principal while the office of the university projects in Juja is headed by a Director. The Claimant’s transfer was to a single campus while the position he held was a university wide position. The Claimant was aggrieved by the purported transfer, hence appealed the same through a letter dated 14th June 2017. 7.The Claimant states that the Respondent failed to review the decision to transfer him to its Karen campus and instead issued him with a letter dated 7th December 2017 alleging that he had absconded duty. The Claimant was thereafter served with a letter dated 14th February 2019 inviting him to a disciplinary meeting scheduled for 21st February 2019, but received another letter on 19th February2019 postponing the planned disciplinary meeting to 22nd February 2019, and ultimately one dated 21st February 2019 unilaterally vacating the disciplinary meeting. Eventually, the Claimant was served with a summary dismissal dated 11th March 2019 which notified him that his employment had been terminated. 8.The Claimant takes issue with his summary dismissal from employment for being unlawful, unfair and illegal as the Respondent failed to adhere to the mandatory provisions of the Employment Act and the Constitution prior to effecting it. Specifically, the Claimant complains that he was never accorded an opportunity to be heard as required under the law; and the Respondent failed to explain the true and/or genuine reasons and/or grounds for his summarily dismissal. Further, the Claimant states that no feedback was given on his appeal against the dismissal. 9.The Claimant discloses that he sought audience with the Respondent’s Vice-Chancellor on 27th March 2019, who during the meeting, repeatedly mischaracterized me. He therefore believes that his summary dismissal from employment was driven by malice and was a deliberate scheme by individuals within and without the management of the Respondent to frustrate, curtail, muzzle and ultimately dismiss the Claimant from employment without justifiable cause. 10.The Claimant denies being in charge of the construction of the main gate project, and states that the project was manned by a whole team led by an architect who was the project manager. The Claimant him states that he was answerable to the estates manager as the head of his department at the time, and to his superior, the clerk of works. The Claimant emphasizes that he was not issued with instructions to report directly to the DVC-APD. It is the Claimant’s case that in any event, from 31st December, 2010, his terms of service which superseded the previous ones provided that if an employee completed six months from the date of his last warning without further offence, the warning recorded in his file shall be deemed to have been cancelled. Since 7 years have lapsed since 2010, it is the Claimant’s case that the Respondent cannot purport to rely on events that occurred in 2010 to rationalize the Claimant’s unlawful termination. It is averred that the purported redundancy claim and the subsequent decision to transfer the Claimant were not made in good faith. The Claimant denies the allegation that he destroyed university property. Respondents’ case in brief 11.The Respondent accepts the Claimant’s version of events in respect to the details of his employment and the correspondences leading up to his summary dismissal. They admit that the Claimant was their employee, having been appointed by the Respondent on contract as an Assistant Clerk of Works, Grade 8 in the respondent's Estates Department for a term of six (6) months with effect from the 4th day of July 2006, and confirmed to permanent and pensionable terms vide a letter dated 9th February 2007. It was a term of the Claimant’s contract of employment that he would perform his duties and discharge his responsibilities with reasonable skill, diligence and efficiency. As the Clerk of Works, the claimant's responsibilities included overseeing and supervising the construction of the main gate project and to provide progress reports on a daily basis to the Deputy Vice Chancellor-Administration, Planning and Development (hereinafter referred to as DVC-APD). 12.The Respondent provides a contextual background to the present dispute by stating that their conflict with the Claimant began around the year 2010, when he blatantly disregarded/violated the Terms of Service for Staff in the Senior Clerical, Catering, Administrative and Technical Grades (hereinafter referred to as the Terms of Service) by failing to provide progress reports to the DVC-APD on the construction of the main gate project as was required of him. 13.The Respondent discloses that on this occasion, the Claimant was issued with a Notice to Show Cause dated 20th April 2010 requiring him to explain why disciplinary action should not be taken against him, and responded vide a letter dated 27th April 2010 denying the allegations raised by the Respondent. After considering the Claimant's response and still finding him culpable, the respondent through a letter dated 30th April 2010 informed the Claimant that he had been suspended from duty for the reason that his conduct in failing to give daily progress reports was scandalous and/or disgraceful and amounted to gross inefficiency, failure or inability to perform his duties, and hence contravened the Terms of Service and the Employment Act. Thereafter, the Claimant was invited for a disciplinary session that was to be held on the 2nd day of September 2010. 14.It is the Respondent’s case that the Claimant appeared before the Disciplinary Committee on the appointed date and following deliberations by the Committee, his suspension was lifted and he was issued with a warning letter to the effect that a repeat of the same or similar behaviour in future would warrant summary dismissal. 15.In relation to the circumstances leading to the case before the Court, it is the Respondent’s position that vide an internal memo dated 27th February 2017 addressed to the Respondent University's Vice Chancellor, the Deputy Vice Chancellor (DVC) in charge of Finance declared redundant a number of University Staff Members including the Claimant. The memo further requested the Vice Chancellor to transfer the affected to other departments where their services would be more useful. Against this background, through a letter dated 31st May 2017, the Claimant was transferred from the Estates Department at the Respondent's Main Campus to the Respondent's Karen Campus and was designated as a Clerk of Works Il-Grade 9 with immediate effect. The transfer letter required the claimant to report to the Principal, Karen Campus for assignment of duties, with a concurrent request to the Director, University Project, to issue a Staff Movement Advice form indicating the date on which the Claimant reported to him. 16.It is averred that through a letter dated 5th September 2017, the Principal Karen campus wrote to the DVC-Administration stating that the Claimant had not reported to his assigned duty station as was directed in the transfer letter. The Respondent resolved and directed on 1st December 2017 that payment of the Claimant's salary be stopped on account of abscondment from duty. 17.It is admitted that subsequently, on 7th December 2017, the Respondent issued the Claimant with a Notice to Show cause requesting for a response as to why disciplinary action should not be taken against him for absconding duty. It is admitted that the Claimant responded vide 19th December 2017 indicating that he wished to seek legal advice. Later, through a letter dated 15th January 2018 in further response to the notice to show cause, the Claimant through its advocates Messrs. A.G. Kimani and Company Advocates, denied the allegations that he absconded duty and indicated that he had lodged an appeal against the decision to transfer him to Karen campus through a letter dated 14th June 2017. Upon receiving the Claimant’s Advocates’ letter, the Respondent on 17th January 2018, advised that due process would be followed in considering the response to the show cause letter incompliance with the University's internal disciplinary procedures. 18.While the disciplinary process was ongoing, on 18th August 2018 during the wee hours of the night, the Claimant drove his motor vehicle registration number KBZ 795V Nissan Double Cabin into the university premises where he resided while intoxicated, losing control and ploughing through the flower beds, as well as damaging the Sajorec sign post and the culvert embankment. The Respondent states that the Claimant failed to report the incident to the police or to the Respondent's security department. 19.As a result of the said incident, the Respondent through a letter dated 13th December 2018 invited the claimant to show cause why disciplinary action should not be taken against him, and invited him for a disciplinary hearing on the 21st day of February 2019. The invitation to disciplinary hearing was withdrawn because the Claimant had absconded from duty almost a year previously and could no longer be considered as a member of staff of the Respondent. It is admitted that nonetheless the Respondent’s Disciplinary Committee convened on 22nd February 2019 to deliberate on the claimant's case and resolved: that a letter be drawn withdrawing the invitation to the disciplinary hearing on the basis that the claimant had absconded duty for over one year and thus could no longer be considered as a member of staff of the University; that the claimant be summarily dismissed; that the University pursues recovery of rent and water bill arrears as well as the costs of repairing the damages to the university property; and that the Departments of Security and Central Services evict the claimant from the University Staff Quarters. Following the resolutions o the disciplinary Committee, the Claimant was issued with a summary dismissal letter on 11th March 2019. HEARING 20.The claim was heard viva voce. The claimant’s case was heard on 21st January 2025, where he was the witness of fact in his case. He adopted his witness statement dated 25th November 2019 and produced his documents under the list dated 22nd November 2019 as C-exhibits 1-127, as his evidence in chief. He was cross-examined by counsel for the respondent, J.B. Macharia. The respondent’s case was heard on the 29th October 2025, where it was called as a witness of fact, Rose Ndegwa, who adopted her undated witness statement and produced the respondent’s documents under list dated 13th November 2019 as R- exhibits 1-19. The witness was cross-examined by counsel for the claimant, Mr. Aloo. DETERMINATION 21.The parties filed written submissions. 22.The court found the claimant was a public officer. He is dissatisfied with the employer's decision to institute summary dismissal and filed the suit. Whereas the court heard the parties, on perusal of the law, the court established that the dispute was to be determined at first instance by the Public Service Commission under section 74 of the Public Service Commission. The law states- ‘74. Appeals(1)Any person who is dissatisfied or affected by a decision made by an authorized officer or other authority in exercise or purported exercise of disciplinary control against any public officer under this Act may appeal to the Commission.(2)An appeal under subsection (1) shall be made in writing within ninety days from the date of the decision appealed against:Provided that the Commission may consider an appeal that was made out of time if, in the opinion of the Commission, the circumstances warrant such consideration.(3)The Commission shall not entertain an appeal by a public officer or a representative of a public officer, in respect of a particular decision, more than once.(4)Despite the right of appeal conferred on a public officer by this section, disciplinary action shall not be deferred or suspended pending the determination of the appeal.(5)After considering an appeal, the Commission may—(a)uphold the decision;(b)set the decision aside;(c)vary the decision as it considers to be just;(d)give such directions as it may consider appropriate with respect to the decision;(e)direct the refund, reinstatement of remuneration or release of any withheld payments due to the public officer as it considers to be just;(f)direct that disciplinary action be taken against any public officer who has failed to discharge a duty that was the public officer's responsibility to perform in relation to the disciplinary case and the concerned public body has suffered a loss; or(g)make any other appropriate decision in view of the circumstances of the case.’ Under the doctrine of exhaustion, the court has to uphold alternative dispute resolution mechanisms. The court invokes Rule 56 of the ELRC Rules (2024) and refers the dispute for resolution by the Public Service Commission under section 74 of the Public Service Commission. Ideally, on finding a sufficient alternative statutory mechanism and the same having been skipped, the court should strike out the suit . It was held in Speaker of the National Assembly v Karume [1992] KECA 42 (KLR) that – ‘In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. We observe without expressing a concluded view that order 53 of the Civil Procedure Rules cannot oust clear constitutional and statutory provisions.’ However Rule 56(5)(c ) of the Employment and Labour Relations Court (Procedural) Rules , 2024 states- ‘(5)Where the Constitution, a written law, collective bargaining agreement, contract of service, policy, or other instrument provides for alternative dispute resolution mechanisms(c)a suit filed prior to exhaustion of such alternative dispute resolution mechanisms may be stayed and not struck out on account of such exhaustion.’ Consequently, the suit is stayed as per the rule and the claimant is directed to institute an appeal with the Public Service Commission under section 74 of the Public Service Commission for it to exercise its statutory jurisdiction. The court lacks first instance jurisdiction. 22.Costs in the cause. 23.It is so ordered DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 19TH DAY OF JUNE 2026.JEMIMAH KELI,JUDGE.In The Presence Of:Court Assistant: OtienoClaimant: Ohaga h/b AlooRespondent: Ms Onyango h/b J.B. Macharia