JMM & 2 others v Registered Trustees of the Anglican Church of Kenya [2016] KEELRC 745 (KLR)
The bottom line
#Kenya's Employment Court ruled three ACK clergy were unfairly sacked and ordered the church to reinstate them with full back pay.
What this practically means
#Executive summary
#Key legal issues
#Whether the Registered Trustees of the ACK is the proper defendant
Yes. The respondent is the only recognised legal person responsible for the church's funds and property, and effective decrees can only bind it; the Anglican Church of Kenya is an unincorporated association.
The respondent pleaded it is an investment arm that does not employ or discipline clergy, but the court found that within the church's statutes it is the only recognised person in law for the church's funds. Article XVII of the church's Constitution vests all church property in the respondent, so no effective decree could bind the church except against the respondent. The court followed cited authorities on proper parties and the Grace Kathure Mugwika decision where the respondent was held liable.
Whether the claimants were employees and whether their employment was terminated
Yes. Each claimant was an employee under the Employment Act, 2007, paid monthly and bound by church regulations; the withdrawal of the licence to officiate and indefinite suspension amounted to termination.
Each claimant took the oath of canonical obedience, made the declaration of assent, and was issued a licence to officiate by the Bishop, which the court found was the instrument of appointment and employment. They received monthly salaries. The indefinite suspensions, withdrawal/cancellation of licences and, for the 2nd claimant, sentences of deposition and deprivation, effectively removed them from Holy Orders and employment, amounting to termination.
Whether the termination was unfair
Yes - for want of both a valid reason and due procedure under the church Canons and the Employment Act.
No notice of allegations, written charge, legal representation or sworn evidence as required by Canons XVI and XVIII was afforded. For sexual immorality the Canons contemplate criminal proceedings and conviction, which never occurred, so no valid reason was established under sections 43(1) and 47(5). The tribunal's own Canons adopt criminal-trial procedure, entitling the claimants to Article 50 safeguards; and 'carnal knowledge' central to the Penal Code offences was never established. The Bishop's rivalry with the 2nd claimant cast doubt on the genuineness of the proceedings.
Whether reinstatement and other remedies were appropriate
Yes. Reinstatement effective the date of removal, accrued salary arrears, and Kshs.2,000,000.00 each for psychological trauma.
The claimants had dedicated their lives to the ministry, did not contribute to their predicament, and no bar to reinstatement existed despite the publicised removal and stigma. Salary arrears were computed for 14 months (1st claimant), and equivalent periods for the others. Psychological trauma, though not scheduled under the Work Injury Benefits Act, was compensable as appropriate relief under section 12(3)(viii) of the Employment and Labour Relations Act given the grave, widely publicised allegations.
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; the Registered Trustees of the ACK, which vests all church property under Article XVII of the Church's Constitution, is the proper defendant for pecuniary claims against the unincorporated Anglican Church of Kenya
- Clergy licensed to officiate under the church's statutes, who are paid a monthly salary, are employees within the meaning of the Employment Act, 2007, and the licence to officiate constitutes the instrument of their employment
- An indefinite suspension and withdrawal/cancellation of a licence to officiate amounts to termination of the clergyman's contract of employment
- Where church disciplinary procedure adopts the rules governing criminal trials in Kenya (Canon XVI (15)), the accused clergyman is entitled to Article 50 fair-trial safeguards, and criminal liability can only be determined by a court established under the Constitution
- Where an employer terminates for misconduct amounting to a criminal offence without any criminal conviction, the burden under sections 43(1) and 47(5) of the Employment Act to prove a valid and fair reason is not discharged
- Psychological trauma, though not a scheduled injury under the Work Injury Benefits Act, 2007, is compensable under section 12(3)(viii) of the Employment and Labour Relations Act as appropriate relief
Court orders
#- 1.Reinstatement of each claimant with full pay and benefits to the respective position held effective the date of removal, with the decision conveyed in the letter of suspension or withdrawal/cancellation of the licence to officiate 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 deployment and assignment of priesthood duties
- 3.Respondent to pay each claimant 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, "JMM & 2 others v Registered Trustees of the Anglican Church of Kenya [2016] KEELRC 745 (KLR)", Case Analysis (2016). Not stated in judgment (three consolidated memoranda of claim filed 30.10.2015, 03.11.2015 and 30.10.2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/745/eng@2016-09-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.