Maasai Mara University & 3 others v Kisirkoi (Civil Appeal 255 of 2018) [2021] KECA 217 (KLR)

Relying on Paramount Bank Ltd v Vaqvi Syed Qamara, the Court held that the Employment and Labour Relations Court Act establishes the court to hear employment and labour disputes and connected matters, and Section 12 confers power over all such disputes including incidental issues. Since the respondent's constitutional claims under Articles 41, 47 and 50 were anchored on the employment relationship with the University, the ELRC could entertain the petition. The appellants' jurisdictional objection, raised for the first time on appeal, therefore failed.

Although the respondent was furnished with details of the negligence allegations, new allegations of incitement were introduced by the letter of 20th January 2017; particulars were never supplied, the incitement charge was not heard by the Disciplinary Committee, yet it resurfaced in the outcome correspondence. The employer also failed to produce minutes or transcripts to rebut claims that the respondent was denied representation and witnesses, and bore the burden of proving fair procedure under Section 45(2)(c) of the Employment Act. The Court adopted the Kisumu County Assembly statement of the irreducible minimum of a fair hearing.

The Court read the petition as raising more than the suspension alone, including lack of procedural fairness and unfair labour practices, so it was not spent when the suspension was lifted. Taking all circumstances into account, the stoppage of salary after the respondent's request that the warning letter be recalled amounted to constructive dismissal. The question then was whether the process leading to that dismissal was fair and lawful, which it was not.

Applying the Kenya Airways guidelines, reinstatement is discretionary and should issue only in very exceptional circumstances, balancing employee and employer interests under Section 49(4) of the Employment Act. Although the learned Judge appreciated these guidelines, he misapplied them: there was a complete breakdown of the employment relationship, the respondent's position had been advertised as vacant, and no exceptional circumstances justified reinstatement. Since reinstatement was impractical, the permanent injunction restraining recruitment to the position could not stand. The Court applied the Mbogo v Shah standard for interfering with discretionary decisions.

The Court saw no reason to disturb the six months' salary award as compensation for unfair termination given the finding that the termination was unfair and constitutional rights were violated. However, the computation on a monthly salary of Kshs. 201,319.50 was not supported by the evidence or pleadings; the correct monthly salary was Kshs. 87,750. The award was therefore set aside and substituted with Kshs. 526,500.

The two applications dated 5th December 2017 (recusal and setting aside of proceedings) were canvassed on 14th December 2017 and determined on 19th December 2017, before judgment on 31st January 2018, so none were pending at delivery. On the alleged bias from the Judge relying on his own case against the TSC, the Court reiterated its earlier position that while a Judge would usually shy away from relying on a case in which he was a party, that is at most a matter of choice and tidiness; no material showed it influenced the assessment of the case.