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ELRCDismissedPetition No 4 of 2015· [2016] KEELRC 1084 (KLR)

Titus Tunje Kadere v Technical Universtity of Mombasa [2016] KEELRC 1084 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
24 June 2016
JRJames Rika
4,262 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment and Labour Relations Court rejected a university lecturer's constitutional petition, confirming workplace disputes must start with the employment contract, not the Constitution.

What this practically means

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Executive summary

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Dr. Titus Tunje Kadere, Academic Registrar of the Technical University of Mombasa, was suspended in December 2014 over alleged irregular admission of 61 engineering students and irregular award of a scholarship to his daughter. After hearings before an Ad Hoc Committee, the Staff Disciplinary Committee and an appellate organ of the University Council, he was found guilty and sanctioned by a warning and redeployment as Senior Lecturer, retaining his salary and allowances. He filed a constitutional petition at the High Court in Mombasa, transferred for want of jurisdiction, seeking declarations of constitutional violation, a permanent injunction against filling his former post, and a mandatory injunction compelling reinstatement. The court framed three issues: whether a constitutional moment was shown; whether the discipline met statutory standards of procedural fairness and substantive justification; and whether the remedies sought were available. Holding that the contract of employment is the first port of entry and the Constitution should not be a vehicle for everyday employment disputes, the court found no constitutional moment. Treating the matter as an ordinary employment dispute under the Employment Act, it found the disciplinary procedure fair and the sanction reasonable, noting the Petitioner had only appealed against the sentence, not the finding of guilt. All remedies were declined; the preliminary objection had merit but did not warrant outright dismissal on that ground alone. The Petition was rejected, the Respondent was freed to fill the Registrar position, and costs were awarded to the Respondent. Judgment delivered at Mombasa on 24th June 2016 by James Rika, Judge.

Key legal issues

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01

Whether the dispute disclosed a constitutional moment warranting a constitutional petition

Holding

No constitutional moment was shown; the dispute is an ordinary employer-employee dispute to be resolved by contract and statute.

Reasoning

The court held the contract of employment and the Terms of Service, incorporating the Employment Act, are the first port of entry. Following cited authorities, the Constitution should not be used for everyday litigation. Unlike cases involving misuse of state power, the Petitioner's grievances could be addressed under the Employment Act, so remedies under Article 23(3) were not accessible.

p. 6
02

Whether the disciplinary procedure accorded with statutory and contractual standards of procedural fairness

Holding

The procedure was fair: the Petitioner was given notice, specific charges, documentation, a hearing with witnesses, and an appeal.

Reasoning

The Respondent showed the Petitioner was invited to show cause, appeared before the Ad Hoc Committee and Staff Disciplinary Committee, called four witnesses, obtained requested documents, and appealed to the University Council. The Petitioner's own appeal letter confined the appeal to the sentence, not the finding of guilt, relieving the Respondent of justifying the verdict further.

p. 7
03

Whether the sanction of warning and redeployment was substantively justified and reasonable

Holding

The sanction was fair, reasonable and proportionate to the proven offences; the court would not interfere with the employer's sentencing discretion.

Reasoning

The Petitioner was found guilty of irregular admission of 61 students and granting his daughter a scholarship. The sanction — a warning and lateral transfer retaining salary and allowances — was described as a slap on the wrist. Courts protect employer prerogative in transfers and sentencing unless malice or unreasonable exercise is shown.

p. 7
04

Entitlement to the remedies sought (declaration, permanent and mandatory injunctions, reinstatement)

Holding

All remedies were declined — unavailable under the Constitution, the contract, and the relevant statutes.

Reasoning

The declaration lacked justification; the permanent injunction would fetter managerial prerogative and contractual liberty; reinstatement would interfere with the employer's disciplinary discretion. The Petitioner lost nothing shown to the court, retaining salary and allowances.

p. 7

Legal principles established

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  • The Constitution should not be used as a general substitute for remedies available under employment legislation and contract; a constitutional petition requires a constitutional moment.
  • The contract of employment is the first port of entry in resolving employer-employee disputes; the Constitution is only a secondary instrument.
  • A disciplinary process satisfying procedural fairness (notice, charges, hearing, documentation, appeal) and reasonable sanction meets the standards of Sections 41, 43 and 45 of the Employment Act.
  • Courts will not interfere with an employer's discretion in sentencing employees found guilty of employment offences unless the discretion is shown to be unreasonable.

Court orders

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  1. 1.The Petition is rejected.
  2. 2.The Respondent is free to fill the position of Registrar, Academic Affairs.
  3. 3.Costs to the Respondent.

Authorities

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Legislation

  • Constitution of KenyaArticle 23(3)
  • Employment ActSection 44(4)(c)
  • Employment ActSections 41, 43, 45, 49
  • Employment and Labour Relations Court Act (previously the Industrial Court Act)Section 12
  • University ActSection 35(1)
  • Terms and Conditions of Service for Registrar Academic Affairs (contract)Clause 23/23.1
  • Respondent's Code of Conduct and Ethicsnull

Cases cited (14)

  • Council of Mining Unions v. Chamber of Mines of South Africa
    [1985] 6 ILJ 293 [IC]
  • Elizabeth Washeke & 62 Ors v Airtel Networks [K] Limited
    [2013] e-KLR
  • David Wanjau Muhoro v. Ol Pejeta Ranching Limited
    [2014] e-KLR
  • Thomas Sila Nzivo v Bamburi Cement Limited
    [2015] e-KLR
  • Boniface Mwangi v. Resident Magistrate Court at Milimani & 2 Ors.
    [2015] e-KLR
  • John Harun Mwau v. Peter Gatrow & 3 Ors
    [2014] e-KLR
  • Rodgers Mema Nzioka v. The Attorney General
    High Court Petition Number 613 of 2006
  • Alphonce Mwangemi & 11 Others v. Africa Safari Club
    Petition Number 564 of 2004
  • East African Portland Cement Limited v. The Attorney-General & Another
    [2013] e-KLR
  • Uhuru Muigai Kenyatta v. Nairobi Publication Limited
    [2013] e-KLR
  • Alex Malikhe Wafubwa v. Elias Nambakha Wamita & 4 Others
    [2012] e-KLR
  • George S. Onyango OGW v. Board of Directors Numerical Machining Complex Limited & 2 Others
  • GMV v. Bank of Africa Limited
    [2013] e-KLR
  • Carmichele v. Minister of Safety and Security
    [2001] [4] SA 938, 2001 [10] BCLR
Jurisdiction invoked
Article 23 of the Constitution invoked for alleged violations of fundamental rights; Employment Act 2007 and Employment and Labour Relations Court Act for the employment dispute

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, "Titus Tunje Kadere v Technical Universtity of Mombasa [2016] KEELRC 1084 (KLR)", Case Analysis (2016). Petition No 4 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1084/eng@2016-06-24

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