Lecturer fired by Tom Mboya University over leaking exams loses bid for Sh1.9m compensation

A lecturer sacked over accusations of leaking exams to students at Tom Mboya University College (TMUC) in Homa Bay County, has lost a court case where he was seeking over Sh1.9 million as compensation for unfair sacking.

Zadock Obuchere Murundu was fired by the university for leaving a bag containing examination papers unattended thereby enabling the undergraduate students to access them prior.

The tutor later sued the university accusing it of sacking him unfairly and sought Sh1,976,340 as compensation.

However, Justice Christine Baari ruled that TMUC fairly sacked the lecturer for carelessly exposing university examinations to leakage by leaving unattended, a bag carrying the exam papers in a lecture hall.

"The lecturer admitted both on cross-examination and at the disciplinary hearing that two exam papers of courses he was teaching at the TMUC leaked. He further admitted that though he was unaware of the leakage until exams were done, the results from one of the papers confirmed the leakage as the particular paper was fairly done compared with other exams," said Justice Baari in her judgment delivered on May 4.

Reason for dismissal

She added: "Integrity of examinations in a university set-up is at the core of such an institution. Public trust and confidence in a teaching institution are founded on how examinations are handled. In my view, the lecturer's admission of leakage of exams justifies the reasons for his dismissal."

Lady Justice Baari observed that the lecturer's job termination was premised on fair and valid reasons related to his conduct at the university which, until August last year, was a constituent college of Maseno University.

TMUC gave evidence against the Grade 12 lecturer saying he was negligent, careless and failed to perform his duty carefully and properly contrary to Article 17.5.2 (iii) of the terms and conditions of his job description.

"Our security report indicates that on November 27, 2019, while lecturing third-year students, Murundu left his bag containing exam papers on a chair in front of the lecture hall to attend to PHD students. The class representative, Collins Kibet was seen taking photos of the lecturer's files which were later discovered to be examination papers," said the university.

It added that it followed due process before the sacking. It said Murundu was invited to a disciplinary committee hearing on March 10, 2020.

Labour court

The lecturer even appeared with a representative pursuant to Article 19 of the Collective Bargaining Agreement (CBA) of his union and Article 17 of the TMUC's terms and conditions of service for employees, the institution said in its argument.

It later terminated his contract on March 17, 2020.

Unsatisfied with the university disciplinary committee's decision, the lecturer filed the claim at the labour court in Kisumu seeking a declaration that his termination was illegal, unfair and against the law.

Murundu also sought payment in damages for the allegedly unlawful termination of employment, a certificate of service, costs of the suit and interest, and any other remedy the court deemed just.

"The suspension letter issued to me did not direct me to explain myself or issue a report on the alleged leakage, but it, instead, suspended me awaiting a disciplinary hearing on a date to be communicated," he said.

Murundu said he was not given a warning letter before the disciplinary sitting, yet a warning letter was a prerequisite to disciplinary proceedings.

"The decision by the university to terminate my services without a good reason was unfair and contrary to Section 45 of the Act and Article 47(1) of the Constitution of Kenya on fair administrative action," he said.

The lecturer was however reprieved when the court ordered TMUC to draft him a certificate of service in line with Section 51 of the Employment Act.

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