Mwakai Kikonde Sio v Kenya Utalii College & another [2015] KEELRC 907 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Identity of the employer
The 1st Respondent, Kenya Utalii College, was the employer at all material times
The 1st Respondent admitted in the Replying Affidavit and submissions that the Petitioner was its employee, rising from Assistant Lecturer to Principal. The letter of appointment dated 29th July 1986 confirmed the Petitioner retained permanent and pensionable status under Kenya Utalii College terms and conditions of service. The 2nd Respondent (Attorney General) was joined as representative of the National Government.
Whether constitutional rights were violated
Yes - rights to fair hearing, livelihood, property, and freedom from inhuman and degrading treatment were violated
The Petitioner was sent on compulsory leave indefinitely without show-cause notice following a students' strike, was never afforded a hearing or given reasons, had his remuneration stopped abruptly in October 2003 and benefits withdrawn, was replaced without due process, and was not paid full terminal benefits computed at Kshs 5,227,028.46. The Respondent's defence was found hollow and largely unanswered.
Whether a petition raising employment disputes is incompetent in the ELRC
No - a petition cannot be struck out merely because it canvasses employment and labour issues, though specific labour remedies are provided by statute
The court held that while the legislature has enacted specific mechanisms for redress of workplace rights violations, and petitions may cloud labour issues, the petition remains a competent mode of approaching the court for constitutional violations arising from employment.
Unpaid terminal benefits
The 1st Respondent must pay the unpaid balance of Kshs 2,559,991.41 with interest
The 1st Respondent computed full terminal benefits at Kshs 5,227,028.46 in its letter of 21st April 2004, but only paid Kshs 2,667,072.05 in various instalments between 2005 and 2009, leaving a balance of Kshs 2,559,991.41. The Respondent never justified the non-payment or provided a statement of account.
Legal principles established
#- A petition canvassing employment and labour issues cannot be struck out merely on that ground, though the proper forum is the ELRC
- Termination or suspension of an employee without notice of wrongdoing and without a hearing violates the right to fair hearing and due process
- The Attorney General is a necessary party where the respondent institution is a National Government institution
Court orders
#- 1.Declared that by terminating and/or suspending the Petitioner from employment without notice of wrongdoing and opportunity to be heard, the Respondent infringed the Petitioner's right to fair hearing and due process
- 2.Declared that by denying the Petitioner remuneration and terminal benefits for an inordinately long period, the Respondents violated his rights to livelihood under Section 57(1), subjected him to inhuman and degrading treatment contrary to Section 74(1), and breached his right to property under Section 75 of the Constitution of Kenya 1969
- 3.1st Respondent directed to pay the balance of computed terminal benefits of Kshs 2,559,991.41 with interest at court rates from 21st April 2004 until payment in full
- 4.1st Respondent directed to pay the Petitioner the equivalent of 12 months gross salary as compensation for the violations, to be computed, served and filed within 30 days, with the Petitioner to confirm the computation within 14 days of service
- 5.The 12-month compensation award payable with interest at court rates from date of judgment till payment in full
- 6.Petitioner awarded costs of the suit
- Jurisdiction invoked
- Article 22(1) and Article 47(1) of the Constitution of Kenya, 2010; transferred to ELRC following ruling on jurisdiction by Isaac Lenaola, J.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwakai Kikonde Sio v Kenya Utalii College & another [2015] KEELRC 907 (KLR)", Case Analysis (2015). Constitutional and Human Rights Division Petition dated 20th September 2013 (transferred to ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/907/eng@2015-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.