Egerton University v James Tuitoek & Chief of Staff and Head of Public Service [2021] KECA 484 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that public bodies cannot remove an employee's accrued benefits without a fair process, even without a signed contract.
What this practically means
#Executive summary
#Key legal issues
#Whether a private employment contract dispute falls outside the scope of judicial review
The matter was within the scope of judicial review because the impugned decision was that of public entities and was alleged to be procedurally improper; judicial review is exceptionally available in employment contracts where there is statutory underpinning or gross violation of rights
The Court acknowledged the relationship was contractual but noted the cause of action was grounded on a University Council resolution implementing a circular issued by the Chief of Staff. Both actors are public entities. Under the Constitution of 2010 and the Fair Administrative Actions Act, judicial review extends to actions affecting legal rights. The Court deprecated the resort to judicial review in ordinary employment disputes with contested facts but found this case, centring on procedural impropriety, properly within the scope of judicial review.
Whether the 2008 terms and conditions of service, including the exit package in clause 13, applied to the 1st respondent
The exit package accrued to and applied to the 1st respondent from 2008 and from his acceptance of the renewed contract in 2011; his failure to sign the revised terms was immaterial
The 1st respondent, as Vice Chancellor, fell within the cadre of senior management staff in clause 13. The letter of 16th September 2015 referring to 'setting aside' the exit package was an implicit acknowledgment that the University was reversing something already in place. Existing staff were not required to sign fresh appointment letters upon adoption of the revised terms, so the absence of a signature was not persuasive. The Court agreed with the trial Judge's conclusion on incorporation.
Whether the judicial review remedies of prohibition and mandamus were properly granted
It was a proper case for the grant of the remedies, based on procedural impropriety and the unlawfulness of a unilateral variation of terms
The orders rested on two bases: the University failed to grant the 1st respondent an opportunity to make representations before removing an accrued entitlement, and the unilateral variation of his terms and conditions would have been unlawful. The limitation argument failed because the six-month period under Section 9(3) of the Law Reform Act and Order 53 Rule 2 applied only to certiorari, which had been declined, and the action was founded on constitutional provisions. Prohibition and mandamus could issue independently of certiorari.
Legal principles established
#- Judicial review remedies are available in contracts of employment where the contract has statutory underpinning and there is violation of fundamental rights
- To succeed in an application for judicial review, an applicant must show that the decision or act complained of is tainted with illegality, irrationality or procedural impropriety
- The Constitution of 2010 elevated judicial review beyond the technicalities of common law, and the Fair Administrative Actions Act extends review to actions affecting legal rights of any person
- A court may not rewrite a contract for parties; parties are bound by the terms of their contract
- The remedies of prohibition and mandamus may issue independently of an order of certiorari
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal are awarded to the 1st respondent
- On appeal from
- Employment and Labour Relations Court at Nakuru
- Nakuru ELRC Judicial Review Application No. 1 of 2016
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (Rule 29(1) reappraisal mandate); the matter originated as a judicial review application before the ELRC under Article 23 and Article 47 of the Constitution and the Fair Administrative Actions Act, 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Egerton University v James Tuitoek & Chief of Staff and Head of Public Service [2021] KECA 484 (KLR)", Case Analysis (2021). Civil Appeal No. 145 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/484/eng@2021-06-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.