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ELRCPartially AllowedCause (Notice of Motion dated 10th April, 2013)· [2013] KEELRC 221 (KLR)

Professor Gitile J. Naituli v Multi Media University College & another [2013] KEELRC 221 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
13 August 2013
1,726 words in judgment
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The bottom line

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Kenya's Employment Court blocked Multimedia University from sidelining a deputy principal, ruling his protected five-year tenure couldn't be cut short by an acting appointment.

What this practically means

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Executive summary

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The Claimant, Deputy Principal (Finance and Administration) of Multimedia University College of Kenya and Associate Professor in the Faculty of Business, moved the Industrial Court by Notice of Motion dated 10th April, 2013 seeking restraining orders against the Respondents. He complained that an internal memorandum of 4th April, 2013 appointed Professors Charles Njoroge and Douglas Shitanda as Acting Deputy Vice Chancellors, effectively replacing him as Deputy Principal and demoting him to his Associate Professor role, in breach of his five-year contract dated 8th February, 2011 running to 7th February, 2016. The Respondents opposed, arguing that the Universities Act, 2012 repealed the legal order establishing the office of Deputy Principal, that the college sued no longer existed, that the claimant retained his full salary, and that Justice Rika had already determined related issues in Cause No. 1200 of 2012 with an appeal pending. The court framed a single issue: whether the claimant had satisfied the requirements for an injunction under Giella v Cassman Brown. Holding that section 76(2) of the Universities Act, 2012 mandates in mandatory terms that principals and deputy principals of constituent colleges remain in office for the remaining period of their terms, the court found a prima facie case with probability of success. It further held that the claimant's effective demotion would irreparably stunt his career progression in a manner not compensable by damages, and that the balance of convenience favoured preserving the status quo. Prayers 3 to 9 of the motion were granted, restraining the respondents from advertising the post, harassing the claimant, interfering with his duties, or suspending or dismissing him until trial, with costs of the application provided for.

Key legal issues

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01

Whether the Claimant established a prima facie case with a probability of success

Holding

Yes - the memorandum appointing an Acting Deputy Vice Chancellor infringed the claimant's contractual right to serve his unexpired five-year term notwithstanding section 76(2) of the Universities Act, 2012

Reasoning

The court applied section 76(2) of the Universities Act, 2012, which preserves in mandatory terms the tenure of principals and deputy principals of constituent colleges for the remaining period of their terms. It was uncontested that the claimant held a five-year contract running to 7th February 2016, which was still in place when the Act became operational. Appointing Professor Njoroge to act in the claimant's role therefore appeared to infringe an existing right calling for explanation or rebuttal, satisfying the prima facie case threshold in Giella v Cassman Brown.

p. 4
02

Whether the claimant would suffer irreparable harm not compensable by damages

Holding

Yes - demotion from a leadership position stunts career progression irrevocably

Reasoning

The court held it was insufficient for the respondents to say the claimant's remuneration was unaffected. Removal from a leadership position amounted to an effective demotion that negatively affects career progression in a way damages cannot correct. The claimant, a professor of long standing and repute, faced stunting of career growth and development that was irrevocable, satisfying the second Giella v Cassman Brown criterion.

p. 4
03

Whether the balance of convenience favoured the grant of the injunction

Holding

Yes - prudence and convenience required the respondent to await the outcome before replacing the claimant

Reasoning

Having found the degree of probability met, the court held that prudence and convenience dictated that the respondent wait a little longer before replacing the claimant from the position he held by virtue of his unspent contract and the provisions of the Universities Act, 2012. This disposed of the third Giella v Cassman Brown criterion and supported granting the restraining orders pending trial.

p. 4

Legal principles established

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  • Section 76(2) of the Universities Act, 2012 mandates that a principal or deputy principal of a constituent college of a public university remain in office for the remaining period of his or her term
  • Stripping an employee of a leadership position is a demotion affecting career progression irreparably, not adequately compensable in damages

Court orders

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  1. 1.Prayers 3 to 9 of the Notice of Motion granted
  2. 2.Respondents restrained from advertising the claimant's post of Deputy Principal (Finance and Administration) in the media or otherwise until trial or further orders
  3. 3.Respondents restrained from intimidating, harassing or frustrating the claimant until trial or further orders
  4. 4.Respondents restrained from interfering with the claimant's discharge of duties as Deputy Principal (Finance and Administration) pursuant to the internal memorandum dated 4th April, 2013 appointing Professor Charles Njoroge Acting Deputy Vice-Chancellor Administration & Finance until trial or further orders
  5. 5.Respondents restrained from interfering with the claimant's discharge of duties under his five-year contract of employment dated 8th February 2011 as amended in July 2011 until trial or further orders
  6. 6.Respondents restrained from interfering with the claimant's discharge of duties as Associate Professor, Faculty of Business, under his contract dated 23rd June, 2010 until trial or further orders
  7. 7.Respondents restrained from suspending or dismissing the claimant until trial or further orders
  8. 8.Costs of the application provided for

Authorities

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Legislation

  • Universities ActSection 76 (including section 76(2))
  • Universities Actgenerally (2012)
  • Evidence Actdefinition of fact
  • Jomo Kenyatta University of Agriculture and Technology (JKUAT) Actrepealed by Universities Act

Cases cited (3)

  • Giela v. Cassman Brown
    [1975] EA 358
  • Mrao v. First American Limited and 2 Others
    (2003) K.L.R.
  • Githunguri v. Republic
    Criminal Appeal No. 271 of 1985 [1986] KLR
Jurisdiction invoked
Employment and labour relations jurisdiction of the Industrial Court; application under Notice of Motion in a cause

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Professor Gitile J. Naituli v Multi Media University College & another [2013] KEELRC 221 (KLR)", Case Analysis (2013). Cause (Notice of Motion dated 10th April, 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/221/eng@2013-08-13

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