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Court of AppealDismissedCivil Appeal 118 of 2019· [2022] KECA 537 (KLR)

Milcah J. Mutwol v Moi University

Court of Appeal
28 April 2022
5,472 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed employers can place staff on compulsory leave and extend suspensions without special contract clauses, and dismissed the employee's appeal.

What this practically means

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Executive summary

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The appellant, a Finance Officer at Moi University, was sent on compulsory leave on 4th May, 2016 following audit queries on the 2013/2014 and 2014/2015 accounts, served with a notice to show cause listing 19 infractions, suspended on half salary, and ultimately dismissed on 9th July, 2018 after disciplinary hearings. The Employment and Labour Relations Court dismissed her claim, holding she failed to prove unfair termination under section 47(5) of the Employment Act. On appeal, the Court of Appeal, as a first appellate court applying the Selle principles, re-evaluated the evidence and dismissed the appeal with costs. It held that compulsory leave requires no express contractual or statutory provision where it is an interim measure to enable investigations, associating itself with Onyango, J. in Thomson Kerongo. It upheld the suspension and its extension, finding contractual underpinning in clause 5.2 of the CBA and applying the Cabiakman factors on protection of legitimate business interests, while declining to follow Almond Kibiwott Kutto on the need for union consent to extend suspension. It found procedural fairness was met, that the appellant herself substantially contributed to the delay in the disciplinary process, that the termination was justified on grounds of negligence, and that the appellant ought to have exhausted the internal appeal mechanism under clause 5.4 of the CBA. The decision below was affirmed in its entirety.

Key legal issues

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01

Lawfulness of compulsory leave without contractual or statutory basis

Holding

Compulsory leave is lawful as an interim measure to enable investigations; no express contractual provision is required.

Reasoning

The court surveyed divergent local jurisprudence and associated itself with Onyango, J. in Thomson Kerongo, holding that no law prohibits compulsory leave. It found the leave here was to enable meaningful investigation, the appellant understood this, and she was given an opportunity to show cause; the decision was fair, reasonable and justifiable.

p. 7
02

Lawfulness of suspension and its extension

Holding

The suspension had contractual underpinning in clause 5.2 of the CBA, protected the employer's legitimate business interests, was in good faith, and its extension was not prohibited by any law.

Reasoning

Applying Cabiakman factors, the court found unauthorised bank accounts and dishonoured cheques under the appellant's watch threatened the University's reputation, justifying suspension. It declined to follow Almond Kibiwott Kutto on the requirement of union consent for extension, holding no law or regulation outlawed extension.

p. 8
03

Procedural fairness of the disciplinary process

Holding

The respondent complied with the procedure; the appellant was given notice, time to respond, a hearing with her advocate and union representative.

Reasoning

The court traced the sequence: notice to show cause, extension of time granted, appearance before the disciplinary committee, hearing in the presence of counsel and a union representative. It concluded the respondent did not fail the test of procedural fairness, rejecting the claim that the October 6, 2016 meeting breached section 41 of the Employment Act.

p. 9
04

Breach of the 6-month timeline under section 63(3) of the Universities Act

Holding

The appellant substantially contributed to the delay through adjournment requests and late filing of submissions; the change of Council also caused delay.

Reasoning

The court found the appellant sought extensions of time when served with the notice to show cause, her counsel sought adjournments to prepare and failed to adhere to timelines for filing submissions. The expiry of the initial Council's term and constitution of a new Council also caused delay, so she could not complain of the breach.

p. 9
05

Substantive justification for termination

Holding

The termination was well founded on grounds of negligence; the appellant failed to meet the burden under section 47(5) of the Employment Act.

Reasoning

The appellant conceded bank accounts were opened without requisite approvals and cheques issued under her watch were dishonoured. The court agreed with the trial judge that she fell short of the section 47(5) requirements, and the respondent justified the dismissal on dereliction of duty.

p. 9
06

Exhaustion of internal appeal mechanisms under the CBA

Holding

The appellant ought to have appealed to the Chairman of Council within 21 days under clause 5.4 of the CBA; her failure rendered her contention misplaced.

Reasoning

Clause 5.4 of the CBA clearly spelt out the appeal avenue to the Chairman of Council and the Appeals Board. The appellant's claim that she was not advised of this procedure was rejected as misplaced; the avenue was clearly spelt out and she failed to use it.

p. 10

Legal principles established

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  • An employer may send an employee on compulsory leave without an express contractual or statutory provision, provided it is an interim measure to enable investigations.
  • There is no law prohibiting the extension of a suspension period; a suspension need not be limited by a CBA timeline absent an express prohibition.
  • A prolonged or indefinite suspension may amount to constructive dismissal; suspension should be definite and not lengthy.
  • An employee who fails to exhaust the internal appeal mechanism under a CBA cannot maintain a suit challenging the disciplinary outcome.
  • The burden of proving unfair termination rests on the employee while the burden of justifying the grounds rests on the employer.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 47
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 47(5)
  • Universities Act, No. 42 of 2012Section 63(3)
  • Statutes of Moi University, 2013Statute XVII
  • Collective Bargaining Agreement between Moi University and KUSU (14th November, 2013)Clauses 5.2, 5.4(a), 52 and 53

Cases cited (18)

  • Ezra Chiloba vs. Wafula Wanyonyi Chebukati & 7 others
    [2018] eKLR

    Compulsory leave does not exist under the law and can only be invoked if expressly provided for in the contract

  • Almond Kibiwott Kutto vs. Masinde Muliro University of Science & Technology
    [2017] eKLR

    Suspension beyond 21 days without union consent under the CBA was unlawful

  • Samson Ole Kisirkoi vs. Maasai Mara University & 3 others
    [2018] eKLR

    Courts duty bound to lift the veil of termination where employers feign justification

  • Kenya Revenue Authority vs. Reuwel Gutahi & 2 others
    Nairobi Civil Appeal No. 66'A' of 2019

    Standard of proof for justification of termination is on a balance of probability

  • CFC Stanbic Limited vs. Danson Mwashako Mwakuwona
    Mombasa Civil Appeal No. 3 of 2014

    Lack of diligence on the part of an employee is sufficient cause for dismissal

  • Kenya Power and Lighting Company Limited vs. Aggrey Lukorito Wasike
    Nyeri Civil Appeal No. 79 of 2016

    Employers have rights which courts are bound to respect and uphold

  • Selle v. Associated Motor Boat Co. of Kenya & others
    [1968] EA 123

    Duties of a first appellate court on re-evaluation of evidence

  • Abdul Hameed Saif –vs- Ali Mohamed Sholan
    (1955) 22 EACA 270

    First appellate court not bound by trial judge's findings of fact

  • Bernard Mwaura Mbuthia v Nyahururu Water & Sanitation Company Limited, County Government of Laikipia (Interested Party)
    [2019] eKLR

    Compulsory leave as an interim measure is within the purview of the employer

  • Humphrey Makokha Nyongesa & another versus Communications Authority of Kenya & 2 others
    (2018) eKLR

    Referenced within Bernard Mwaura Mbuthia on compulsory leave

  • Thomson Kerongo & 2 others v James Omariba Nyaoga & 3 others
    [2017] eKLR

    No law prohibiting an employer from sending an employee on compulsory leave as an interim measure

  • Shedd Dennies Simotwo v Speaker, Narok County Assembly & another
    [2015] eKLR

    Suspension must have contractual authority or statutory underpinning

  • Kenya Plantation & Agricultural Workers Union v Finlays Horticulture Kenya Ltd
    (2015) eKLR

    Referenced with Shedd Dennies Simotwo on lawful suspension

  • McKenzie v Smith
    (1976) IRLR 345

    Referenced on lawful suspension

  • Lewis v Heffer and others
    [1978] 3 All ER 354 (CA)

    Suspension pending enquiries is done by way of good administration; natural justice does not apply at that stage

  • Member of the Executive Council for Education, North West Provincial Government v Gradwell
    (2012) 33 ILJ 2033 (LAC)

    Procedural fairness may be attenuated for holding-operation suspensions

  • Cabiakman v. Industrial Alliance Life Insurance Co.
    2004 SCC 55, [2004] 3 S.C.R. 195

    Factors for determining justification of administrative suspension

  • Potter v. New Brunswick Legal Aid Services Commission
    2015 SCC 10, [2015] 1 S.C.R. 500

    Prolonged or indefinite suspension may amount to constructive dismissal

On appeal from
Employment and Labour Relations Court of Kenya at Eldoret
ELRC No. 247 of 2018
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate mandate (Selle v Associated Motor Boat Co. principles applied)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Milcah J. Mutwol v Moi University", Case Analysis (2022). Civil Appeal 118 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/537/eng@2022-04-28

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