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ELRCDismissedNot stated in the judgment (Notice of Motion dated 2nd October 2013 in a claim filed 2nd October 2013)· [2013] KEELRC 912 (KLR)

Joseph Mutuura Mberia & another v Council Jomo Kenyatta University Of Agriculture And Technology (Jkuat) [2013] KEELRC 912 (KLR)

Industrial Court of Kenya
22 November 2013
4,659 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimants, lecturers at JKUAT and UASU union officials, sought an interim injunction under Article 41 of the Constitution, section 46(d) of the Employment Act and section 12 of the Industrial Court Act to restrain the university from suspending, terminating or disciplining them. They had been served with suspension letters dated 6th September 2013 but served on 27th September 2013, citing 'inimical conduct' without particulars, which they said was victimisation for union activity and for court cases filed against the employer. The respondent, through a replying affidavit of Vice Chancellor Mabel Imbuga, said the suspension followed a full council meeting to facilitate investigations under the CBA, and objected that the application was premature, defective and that suspension could not be reversed since it had taken effect. The Court first held that it has jurisdiction under Articles 162 and 165 and section 12 of the Industrial Court Act to interdict unfair disciplinary conduct, but only in exceptional or compellingly urgent circumstances, dismissing the respondent's jurisdictional objection and following the South African Gradwell decision. The Court found the respondent entitled to issue disciplinary handling procedures consistent with the CBA, that union officials remain subject to discipline for justifiable cause, and that the claimants failed to establish a clear right or the threshold for interim relief - a suspension's inherent embarrassment is common to all suspended employees. The Court also held that a right to fair suspension cannot be implied into the contract nor founded directly on the Constitution where the Employment Act regulates the right, though the 21-day service delay justified urgent filing. The application dated 2nd October 2013 was dismissed with costs in the cause, but the claimants were to continue accessing the respondent's premises without undue restrictions to perform their union duties, and the respondent was reminded of section 46(h) Employment Act against victimisation for founded complaints.

Key legal issues

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01

Jurisdiction of the Industrial Court over interim applications relating to suspensions

Holding

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.

Reasoning

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.

p. 3
02

Employer's right to suspend and discipline

Holding

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.

Reasoning

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.

p. 4
03

Whether the claimants met the threshold for interim relief

Holding

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.

Reasoning

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.

p. 5
04

Whether a right to fair suspension arises by implication or directly from the Constitution

Holding

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.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 2.The application dated 2nd October is dismissed
  3. 3.Costs will be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 162 and 165 (including 165(5))
  • Employment Act, 2007Section 41; Section 46(d) and 46(h); section 3
  • Industrial Court ActSection 12(1), (2) and 12(3)(i)
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (4)

  • Republic versus Matheka Kithome and Others
    [2012] eKLR
  • Jorum gakumo versus Thika Coffee Mills limited
    [2012] EKLR
  • Miguna Miguna versus Permanent Secretary, Office of the Prime Minister and the Attorney General
    (2011) eKLR
  • Member of the Executive Council for Education, North West Provincial Government v Gradwell
    (2012) 33 ILJ 2033 (LAC)
Jurisdiction invoked
Article 162 and 165 of the Constitution; Section 12 of the Industrial Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.