J M M, J N G & P M W v Registered Trustees of the Anglican Church of Kenya [2016] KEELRC 387 (KLR)
The bottom line
#Kenya's employment court reinstated three Anglican priests, ruling the church unfairly terminated them without proof or a fair internal process.
What this practically means
#Executive summary
#Key legal issues
#Proper defendant for claims against an unincorporated church
The Registered Trustees of the ACK is the proper party to be sued for pecuniary reliefs against the Anglican Church of Kenya, an unincorporated association.
Article XVII of the Constitution of the Anglican Church of Kenya vests all church property in the respondent, which is the only recognised legal person responsible for the church's funds. Since the claimants sought pecuniary reliefs that only the respondent can satisfy on behalf of the church, no effective decree could bind the church except against the respondent.
Whether clergy were employees and whether withdrawal of licences amounted to termination
The claimants were employees within the Employment Act, 2007, and the indefinite suspensions, withdrawal/cancellation of licences to officiate and sentences of deposition and deprivation amounted to termination of employment.
Each claimant was paid a monthly salary and bound by the church's regulations, oaths, declarations and constitutions. The licence to officiate constituted the instrument of employment. Withdrawal of the licence together with indefinite suspension (and deposition/deprivation for the 2nd claimant) amounted to termination of the contracts of employment.
Fairness of the disciplinary process and termination
The termination was unfair for want of a valid reason and want of due procedure under the church's Canons and the Employment Act.
No criminal conviction for the alleged homosexuality existed, yet Canon XVI contemplates a criminal charge and conviction as conclusive proof. No written charge, notice, legal representation or sworn evidence was afforded as required by Canon XVI and XVIII, and section 41 of the Employment Act. Church tribunals must apply criminal trial standards, including Article 50 constitutional safeguards, since Canon XVI(15) adopts the rules governing criminal trials in Kenya.
Criminal allegations as a basis for disciplinary action
Employers lack power to make findings of criminal liability; where misconduct has criminal elements, the employer should stay the disciplinary process pending the criminal process.
Under the supremacy of the Constitution (Article 2) and Article 50(2)(d), any offence alleged against the claimants had to be proved in a public trial before a constitutionally established court. The alleged homosexual acts, defined by reference to sections 162 and 163 of the Penal Code, were never established. The court reaffirmed its earlier principles that an employer making a criminal complaint is bound by its outcome.
Remedies: reinstatement and compensation for psychological trauma
Each claimant was entitled to reinstatement, accrued salary arrears, and Kshs.2,000,000 each for psychological trauma.
No bar to reinstatement existed; the claimants did not contribute to their predicament and suffered public stigma from widely publicised removal. Psychological trauma is a mental injury not contemplated under the Work Injury Benefits Act, 2007, but section 12(3)(viii) of the Employment and Labour Relations Act empowers the court to grant any appropriate relief.
Legal principles established
#- A proper party to a suit must be one upon whom rights and obligations arising from the cause of action attach and in whose absence no effective decree or order can be passed.
- Where the alleged misconduct amounts to a criminal offence, criminal liability can only be determined by a secular court; an employer's internal tribunal cannot make findings of criminal liability, and under Article 50(2)(d) any such offence must be proved in a public trial before a court established under the Constitution.
- The burden of proving a valid and fair reason for termination rests on the employer under sections 43(1) and 47(5) of the Employment Act, 2007.
Court orders
#- 1.Reinstatement of each claimant with full pay and benefits to the respective position held in the church effective the date of removal by indefinite suspension or withdrawal or cancellation of the licence to officiate, to continue serving with full benefits until lawful termination; the decision conveyed in the letter of suspension/withdrawal/cancellation of the licence set aside
- 2.Each claimant to report to the Lord Bishop of the Diocese of [particulars withheld] not later than 01.10.2016 at 0900Hrs for appropriate deployment and assignment of priesthood duties
- 3.Respondent to pay all accrued salary arrears from the date of removal until the date of judgment and thereafter full monthly salary, allowances and benefits until lawful termination
- 4.Respondent to pay the 1st claimant Kshs.2,224,996.00, the 2nd claimant Kshs.2,437,780.00 and the 3rd claimant Kshs.2,219,814.00 by 01.12.2016, failing interest at court rates from the date of judgment until full payment
- 5.Respondent to pay each claimant's costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Act, 2011 (including section 12(3)(viii) power to make any other appropriate relief)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "J M M, J N G & P M W v Registered Trustees of the Anglican Church of Kenya [2016] KEELRC 387 (KLR)", Case Analysis (2016). Consolidated memoranda of claims filed 30.10.2015 and 03.11.2015 (Nyeri Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/387/eng@2016-09-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.