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Court of AppealDismissedCivil Appeal No. 279 of 2013

Francis Gathungu v Kenyatta University

Court of Appeal
26 January 2018
3,503 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that ordinary employment disputes must go through employment channels, not constitutional petitions.

What this practically means

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Executive summary

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The Court of Appeal (Musinga, Kiage & Murgor JJ.A) dismissed an appeal by Francis Gathungu against the High Court's (Lenaola, J) dismissal of his constitutional petition seeking declarations that Kenyatta University violated his rights under sections 73, 74, 75, 77 and 82 of the repealed Constitution by suspending him without pay between 1996 and 2000 and withholding salary arrears of Kshs. 18,967,737. The sole issue framed was whether the petition was premised on the employment contract only or raised constitutional issues. Holding that the contract of employment dated 27th February 1979 was the first port of call, and that its dispute-resolution scheme pointed to the Industrial Court, the Court held the dispute was 'really an industrial one which ought to have been made as a civil claim and not a constitutional matter.' Endorsing Speaker of the National Assembly v Karume and the Supreme Court's principle of avoidance in Communications Commission of Kenya v Royal Media Services, and drawing on Carmichele v Minister of Safety and Security, the Court held that courts must rebuff attempts to constitutionalise ordinary disputes. The judgment binds lower courts to follow prescribed statutory and contractual dispute-resolution procedures rather than dressing employment claims as constitutional petitions. The appeal was dismissed with costs to the respondent; the High Court decision was affirmed.

Key legal issues

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01

Whether the dispute was a constitutional matter or an ordinary employment dispute

Holding

It was an ordinary industrial/employment dispute arising from the contract of employment and should have been pursued as a civil claim, not a constitutional petition.

Reasoning

The court held the contract of employment dated 27th February 1979 was the first port of call; its dispute-resolution scheme referred unresolved matters to the Industrial Court. The contract, general terms of service and the Employment Act were paramount, and no logical or lawful basis elevated non-payment of salary during suspension to a constitutional violation.

p. 5
02

Whether the learned judge erred in dismissing the petition

Holding

No; the judge was justified in dismissing the petition and the Court of Appeal saw no reason to interfere with his decision.

Reasoning

Applying its first-appeal jurisdiction, the Court found the appellant had not presented a sufficient basis to show constitutional violations addressable by ordinary suit, and the trial court's conclusions were neither perverse nor unsustainable.

p. 6

Legal principles established

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  • Where a clear procedure for redress of a grievance is prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed; ordinary employment disputes should not be constitutionalised.
  • Courts must confine constitutional determination to disputes raising authentic and genuine constitutional questions, applying the principle of avoidance.

Court orders

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  1. 1.Appeal dismissed with costs to the respondent
On appeal from
High Court at Nairobi
H.C. Petition No. 633 of 2008
Jurisdiction invoked
First appeal under Rule 29(1)(a) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Francis Gathungu v Kenyatta University", Case Analysis (2018). Civil Appeal No. 279 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/876/eng@2018-01-26

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