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ELRCDismissedPetition (amended petition dated 30th July 2014)· [2015] KEELRC 538 (KLR)

Daniel N. Mugendi v Kenyatta University & 3 Others [2015] KEELRC 538 (KLR)

Employment and Labour Relations Court
28 August 2015
MNMathews N. Nduma
4,186 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that an employee who refuses to speak during an employer's disciplinary investigation cannot later claim his right to a fair hearing was violated.

What this practically means

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Executive summary

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The Petitioner, former Deputy Vice Chancellor (Finance, Planning and Development) at Kenyatta University, petitioned for certiorari to quash a compulsory leave notice dated 10th August 2011 and related notices, declarations that his constitutional rights were violated and that provisions of the Kenyatta University Act Cap 210c were void to the extent of any inconsistency, compensation, and quashing of his suspension. The dispute arose from an altercation on 4th August 2011 between the Petitioner and the Vice Chancellor, Prof Olive M. Mugenda, over tabling of terms and conditions of service, which the Vice Chancellor reported as harassment and threat of physical harm. The General Purposes Committee of the University Council placed him on compulsory leave pending investigations, and a Special Committee recommended initiation of disciplinary proceedings. The Petitioner, though invited severally, declined to speak to the Committee and instead filed suit through counsel. The court framed four issues: violation of constitutional rights; whether the dismissal process was void for breach of natural justice; breach of statutory provisions; and reliefs. The court held that no violation was established: the Petitioner was afforded the opportunity to be heard and squandered it; Article 50(2) applies only to criminal proceedings; the compulsory leave and restriction on access to premises were lawful measures pending investigations into serious misconduct; and no dismissal had occurred, rendering findings on the disciplinary process speculative. The petition was dismissed with costs to the Respondents, with a caution to the University to conclude the disciplinary process expeditiously and in accordance with the law.

Key legal issues

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01

Whether the Petitioner's right to fair administrative action and fair hearing under Articles 47 and 50(1) was violated

Holding

No violation; the Petitioner was afforded opportunity to be heard but declined to speak to the Committee, though his counsel was allowed to address it

Reasoning

The Committee convened properly and invited the Petitioner severally. He attended with counsel who stated he would not speak and would file suit. The court relied on the principle that an employee who squanders internal grievance mechanisms cannot claim non-hearing. His counsel was permitted to address the committee, satisfying the right to be heard under Article 50(1).

p. 7
02

Whether the compulsory leave and denial of access to University premises violated freedom of movement under Article 39(1)

Holding

No violation; restrictive measures on employees under investigation for serious misconduct are lawful

Reasoning

The court held that employment law permits restrictive measures against an employee under investigation for serious misconduct. Placing the Petitioner on compulsory leave pending investigations into alleged threats against the Vice Chancellor was lawful and, in the court's view, the reasonable course for the University to take in the circumstances.

p. 8
03

Whether the dismissal process was void for breach of natural justice or statutory provisions

Holding

The question was premature; no dismissal had occurred and the Committee's recommendations had not yet been placed before the full Council

Reasoning

The Petitioner's employment had not been terminated; he was only on compulsory leave pending investigations. The Special Committee's report was subject to discussion and possible ratification by the Council. Making findings on a hypothetical future disciplinary process would be speculation, so the court declined to determine the merits of a process yet to commence.

p. 8

Legal principles established

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  • An employee who refuses to participate in the employer's internal grievance and disciplinary process cannot later claim a violation of the right to be heard
  • A decision by an employer that is ultra vires or contrary to natural justice is amenable to judicial review and may be quashed
  • Article 50(2) rights apply only to criminal proceedings, not quasi-judicial disciplinary proceedings
  • Restrictive measures such as compulsory leave may lawfully be imposed on an employee under investigation for serious misconduct

Court orders

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  1. 1.Petition dismissed
  2. 2.Respondents cautioned to deal with the disciplinary matter expeditiously and strictly adhere to the guiding statutes and the law
  3. 3.Respondents ordered to pay costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47(1)
  • Constitution of Kenya, 2010Article 50(1), 50(2)(a), 50(2)(c), 50(2)(g), 50(2)(k)
  • Constitution of Kenya, 2010Article 39(1)
  • Constitution of Kenya, 2010Article 236(b)
  • Kenyatta University ActCap 210c
  • Employment Actsection 44
  • Kenyatta University StatutesStatute XIV Clause 23; Statute IX Clause 2; Schedule 3(c)(2)
  • Kenyatta University CalendarStatute IX Clause 2

Cases cited (7)

  • Malloch Vs Aberdeen Corporation
    [1971] 2 All ER 1278
  • Rose Wanjiru Mambo & 2 Others Vs Limuru Country Club & 17 Others
    [2014] eKLR
  • Stephen S. Pareno Vs Judicial Service Commission of Kenya
    (2014) eKLR
  • Eliud Nyauma Omwoyo & 2 Others Vs Kenyatta University
    [2014] eKLR
  • Jackson Butiya Vs Eastern Produce Ltd
    Cause No 335 of 2011
  • David Wahome Vs Schenker Limited
    [2014] eKLR
  • Oluoch Dan Owino & 3 Others Vs Kenyatta University
    [2014] eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 (Articles 47, 50, 39, 236) - petition for violation of fundamental rights and freedoms and judicial review orders

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Daniel N. Mugendi v Kenyatta University & 3 Others [2015] KEELRC 538 (KLR)", Case Analysis (2015). Petition (amended petition dated 30th July 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/538/eng@2015-08-28

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