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ELRCPartially AllowedNot stated in the judgment· [2015] KEELRC 309 (KLR)

Ezekiel Kiprop & 8 others v University Of Eldoret [2015] KEELRC 309 (KLR)

Employment and Labour Relations Court
6 November 2015
1,380 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that employee suspensions were defective because the employer ignored mandatory contract terms, including notifying the employees' union.

What this practically means

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Executive summary

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Seven Petitioners (originally nine; the 4th died and the 9th was withdrawn) filed a petition on 23 July 2015 alleging violation of constitutional rights after the Respondent suspended them on 17 July 2015, together with a motion seeking seven orders including a mandatory injunction and preservation of their positions. The court had earlier issued conservatory orders staying the suspensions and directing continued payment of full salaries pending the ruling. The Petitioners argued the suspensions breached the collective bargaining agreements (which provided for interdiction rather than suspension for UASU members), were vague, malicious, ethnically targeted and designed to divert attention from investigations into mismanagement. The Respondent said the suspensions were to facilitate investigations into alleged incitement of a student strike, were lawful, and were necessary to avoid breach of the peace. The court held that an employer requires contractual or statutory authority to suspend, and that such authority existed here but was subject to conditions that were not met: entitlements and the period of suspension were not disclosed, and suspension letters of KUSU members were not copied to the Union as the CBA mandatorily required. The suspensions were therefore defective, though the Petitioners had suffered no prejudice given continued full pay. The court declined the mandatory injunction, found the preservation prayer spent, and instead directed the Respondent to notify the Petitioners of the outcome of investigations and intended further action, concluding any outstanding investigations within 10 days. The Petition was to be mentioned on 27 November 2015 for further directions, and each party was ordered to bear its own costs.

Key legal issues

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01

Contractual authority for suspension

Holding

The Respondent had contractual authority to suspend the Petitioners but subject to attendant conditions which were not disclosed to them

Reasoning

The court surveyed comparative common law authority (McKenzie v Smith; McClory v Post Office) establishing that suspension requires contractual authority, and noted statutory underpinning can also authorise suspension. The applicable CBAs contained such authority: clause 5.2 for KUSU members (suspension on half pay, max 21 days, union notification) and clause 31.2 for UASU members (interdiction on half salary, 21-day timelines). The Respondent therefore had a contractual basis, but failed to meet the attendant conditions.

p. 3
02

Defectiveness of the suspensions

Holding

The suspensions were defective because entitlements and period were not disclosed and KUSU members' unions were not notified

Reasoning

Clause 5.2 of the KUSU CBA required the suspension letter to be copied to the Union's Secretary General/Branch Secretary, which was not done. The suspension letters also failed to disclose entitlements during suspension and the period of suspension. The court reasoned that union notification serves to protect employees against the dominant employer. However, because the Court had directed full salaries be paid and investigations continued, the Petitioners were not prejudiced.

p. 3
03

Distinction between interdiction and suspension

Holding

Technically different terms, but the court doubted the parties used 'interdict' in its technical meaning

Reasoning

Counsel argued interdiction and suspension are distinct. The court accepted the terms do not technically mean the same, citing statutory instruments governing the civil service, but doubted that UASU and the Respondent used 'interdict' technically, and proceeded on the basis that the Respondent had a contractual basis to suspend subject to conditions.

p. 3

Legal principles established

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  • An employer needs contractual or statutory authority to suspend an employee; absent such authority, suspension may amount to breach of contract or dismissal
  • Where a collective bargaining agreement requires notification of the union on suspension, such notification is mandatory and failure to give it renders the suspension defective
  • The employer is a dominant force and the employee may lack resources and knowledge to protect his interests, hence the requirement to notify unions in disciplinary processes

Court orders

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  1. 1.The Respondent is directed to notify the Petitioners of the outcome of the investigations and what further action it intends to take
  2. 2.In case the investigations were not concluded, they should be concluded within 10 days and the Petitioners be duly notified of the outcome
  3. 3.The Petition to be mentioned on 27 November 2015 for the Petitioners to inform the Court of the utility of the Petition remaining in the docket/further directions
  4. 4.Each party to bear own costs

Authorities

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Legislation

  • Anti-Corruption and Economic Crimes ActNot specified (suspension of persons charged with corruption offences)

Cases cited (2)

  • McKenzie v Smith
    (1976) IRLR 345
  • McClory v Post Office
    (1993) IRLR 159
Jurisdiction invoked
Original constitutional jurisdiction over alleged violations of constitutional rights in employment (petition filed under certificate of urgency; specific article not cited in the excerpt)

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, "Ezekiel Kiprop & 8 others v University Of Eldoret [2015] KEELRC 309 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/309/eng@2015-11-06

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