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Court of AppealPartially AllowedCivil Appeal No. 85 of 2013· [2017] KECA 227 (KLR)

Kenyatta University & another v Fred Obare [2017] KECA 227 (KLR)

Court of Appeal
19 October 2017
AMAsike MakhandiaWilliam OukoW. OukoAMA.K. Murgor
3,018 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal allowed Kenyatta University's appeal, ruling the employee's suspension was lawful and courts must not interrupt ongoing disciplinary processes.

What this practically means

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Executive summary

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The respondent, a Senior Records Officer at Kenyatta University, was suspended on half salary in January 2009 over allegations that he filed fictitious mileage claims by forging a superior's signature. He declined to appear before the disciplinary board, contending it was improperly constituted, whereupon the University stopped his remaining half salary pending conclusion of the disciplinary process. The Industrial Court (Makau J) declared the indefinite suspension unlawful, lifted it, ordered the respondent's reinstatement and deployment, and awarded full salary arrears for 48 months (Kshs. 2,316,240) plus restored medical benefits, though it declined damages. The University appealed on two condensed grounds: that the Judge erred in branding the employer's conduct reckless, and that the Judge exceeded his jurisdiction by granting reinstatement and full salary not pleaded. Allowing the appeal, the Court of Appeal, as a first appeal, re-evaluated the evidence and held that the suspension was lawful under the CBA and the University's Policies; the disciplinary hearing was convened within the 3-month limit; the respondent's refusal to attend was a separate misconduct justifying withdrawal of the remaining half salary; and the stoppage was temporary, not indefinite. The Court further held that judicial intervention in a pending disciplinary process was premature, that reinstatement could not be granted where not pleaded and where the employee had not been dismissed, and that parties are bound by their pleadings. The trial decision was set aside, the respondent's claim dismissed, the University left free to conclude the disciplinary case, with no orders as to costs.

Key legal issues

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01

Whether the suspension and stoppage of half salary and medical cover was unlawful

Holding

The suspension was lawful. The employer was permitted to suspend on half salary pending investigation, the hearing was convened within the 3-month limit, and the respondent's refusal to attend constituted a separate misconduct justifying the stoppage of the remaining half salary.

Reasoning

Clause 5.2 of the CBA and Clause 4.15 of the Administration Policies permitted suspension on half salary pending investigation, with cases to be determined within 3 months. The hearing was invited within 36 days, well within that period. The stoppage of the remaining half salary was a temporary measure following the respondent's refusal to attend the properly convened hearing, not an indefinite suspension. The trial judge's characterisation of the employer's conduct as reckless was a misdirection.

p. 5
02

Whether the trial court could order reinstatement and full salary arrears not sought in the pleadings

Holding

No. The trial Judge exceeded his jurisdiction; the respondent had not been dismissed and had only prayed for reinstatement of half salary; parties are bound by their pleadings.

Reasoning

The respondent's three prayers were a declaration of unlawfulness, reinstatement of half salary arrears, and medical cover. Reinstatement to employment was never pleaded, and the disciplinary process had not concluded in dismissal. Awarding full salary from January 2009 also ignored the half salary actually received, effectively awarding more than the maximum claimed. These errors vitiated the awards, warranting setting aside of the entire decision and dismissal of the claim.

p. 5
03

Standard of appellate review on a first appeal

Holding

As a first appeal, the Court re-evaluates the evidence and reaches its own independent conclusion

Reasoning

The Court expressly adopted the classic first-appeal approach, re-evaluating the evidence presented before the trial court so as to arrive at its own independent conclusion, guided by Selle v Associated Motor Boat Co.

p. 4

Legal principles established

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  • Employment contracts in Kenya import a mutual duty of trust and confidence between employer and employee
  • Where a disciplinary process is properly commenced and pending, courts should not intervene prematurely; the employer must be left to conclude the process
  • An employee's refusal to attend a properly convened disciplinary hearing constitutes a separate misconduct justifying withdrawal of benefits pending the hearing
  • A court cannot grant relief that was not pleaded; parties are bound by their pleadings

Court orders

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  1. 1.The appeal is allowed
  2. 2.The decision of the Industrial Court rendered on 14th December 2012 is set aside
  3. 3.The respondent's claim in the court below is dismissed
  4. 4.The appellants are at liberty to conclude the disciplinary case against the respondent
  5. 5.No orders as to costs

Authorities

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Legislation

  • Employment Act, 2007Section 41(1) and (2)
  • Employment Act, 2007Section 44(3), (4)(e) and (4)(g)
  • Employment Act, 2007Section 49
  • Collective Bargaining Agreement (Kenyatta University)Clause 5 and Clause 5.2(a) and (b)
  • Kenyatta University Administration Division Procedures and PoliciesClause 4.15
  • Terms of Service for Senior Clerical, Catering, Administrative and Technical StaffSections 5.3 and 6.3

Cases cited (4)

  • Suraya Holdings Limited v Icici Bank Limited
    HCCC No. 85 of 2015
  • Alguhussein Establishment v Eton College
    [1988] 1 WLR 587
  • Kenya Commercial Bank v Mukiri Ndegwa & Another
    Civil Appeal No. 132 of 2008
  • Selle v Associated Motor Boat Co.
    [1968] EA 123
On appeal from
Industrial Court at Nairobi
Cause No. 240 of 2009
Jurisdiction invoked
First appeal to the Court of Appeal against a judgment of the Industrial Court (now Employment and Labour Relations Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenyatta University & another v Fred Obare [2017] KECA 227 (KLR)", Case Analysis (2017). Civil Appeal No. 85 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/227/eng@2017-10-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.