Joseph Mutuura Mberia & another v Council Jomo Kenyatta University Of Agriculture And Technology (Jkuat) [2013] KEELRC 912 (KLR)
The bottom line
#Kenya's Industrial Court refused to stop JKUAT's suspension of two union lecturers, ruling courts only intervene in workplace discipline in exceptional circumstances.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Industrial Court over interim applications relating to suspensions
The Court has jurisdiction as a matter of principle to entertain applications to lift a suspension, but will exercise it only in extraordinary or compellingly urgent circumstances; the respondent's jurisdictional objection was dismissed.
The Court's competence derives from Section 12 of the Industrial Court Act pursuant to Articles 162 and 165 of the Constitution. Section 12(3)(i) empowers the Court to make interim preservation orders including injunctions in urgent cases. Intervention does not usurp the employer's disciplinary role, but courts must act sparingly, considering whether failure to intervene would cause grave injustice or whether justice may be attained by other means.
Employer's right to suspend and discipline
The respondent was entitled to issue disciplinary handling procedures applicable to its unionisable staff and to suspend the claimants to facilitate investigations, provided due process and fair labour practices are upheld.
All employees remain subject to disciplinary measures for misconduct or gross misconduct, whether unionised or not. The disciplinary handling procedures were found consistent with the CBA and the recognition agreement. Suspension is an interlocutory step pending investigations, distinct from a grievance process, and the employer's right must be exercised reasonably, fairly and justly.
Whether the claimants met the threshold for interim relief
They did not; the suspension letter's reference to 'inimical conduct' without particulars did not, at the interim stage, meet the threshold for stopping the process, and access orders would protect their union duties.
The suspension had already taken force, is time-limited under the CBA, and the claimants remain employees pending investigation outcomes. Possible embarrassment and damage from suspension is the lot of every suspended employee and cannot of itself render a case urgent; granting relief on that basis would open the floodgates and undermine the statutory dispute-resolution scheme.
Whether a right to fair suspension arises by implication or directly from the Constitution
No. There is no implied contractual right to a fair suspension and direct reliance on Article 41 is impermissible where the Employment Act regulates the right to fair labour practices.
The Employment Act provides statutory rights, remedies and dispute-resolution mechanisms, including referral first to a Labour Officer. However, the Court noted the 21-day delay between the date of the suspension letters and their service justified the claimants filing urgently before the Court rather than the Labour Officer, and reminded the respondent that under section 46(h) lodging founded complaints against an employer is not a fair reason for dismissal or penalty.
Legal principles established
#- The Industrial Court has jurisdiction to interdict unfair conduct including disciplinary action, but should only intervene in disciplinary processes in exceptional or compellingly urgent circumstances.
- Where legislation is enacted to give effect to a constitutional right, a litigant cannot bypass the legislation and rely directly on the Constitution without challenging the legislation.
- There is no implied right to fairness incorporated into the employment contract capable of founding a claim for unfair suspension; such rights are statutory with statutory remedies.
- Being a union official does not remove an employee from the employer's disciplinary measures where there is justifiable cause.
Court orders
#- 1.That pending their suspension and the suit, the claimants will continue to have access to the respondent premises without undue restrictions that would negate their union duties unless there is a separate justifiable cause to deny them such access
- 2.The application dated 2nd October is dismissed
- 3.Costs will be in the cause
- Jurisdiction invoked
- Article 162 and 165 of the Constitution; Section 12 of the Industrial Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Mutuura Mberia & another v Council Jomo Kenyatta University Of Agriculture And Technology (Jkuat) [2013] KEELRC 912 (KLR)", Case Analysis (2013). Not stated in the judgment (Notice of Motion dated 2nd October 2013 in a claim filed 2nd October 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/912/eng@2013-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.