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ELRCDismissedPetition No. 2 of 2016 (Nakuru)· [2016] KEELRC 1275 (KLR)

Hosea Sitienei v University of Eldoret & another [2016] KEELRC 1275 (KLR)

Employment and Labour Relations Court
3 May 2016
RSRadido Stephen
1,400 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 it will rarely stop an employer's disciplinary process mid-way; employees should challenge unfair outcomes after the decision, not before.

What this practically means

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Executive summary

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The Petitioner, Hosea Sitienei, Finance Officer of the University of Eldoret, was suspended in July 2015 pending investigations into alleged involvement in unrest at the University. Following a court directive in Nakuru Petition No. 8 of 2015, the Respondents issued a show cause notice on six allegations and convened disciplinary hearings, which eventually proceeded on 13 January 2016. Before the outcome could be announced, the Petitioner filed this Petition seeking to stop the release of the decision. The Petition was heard alongside Nakuru Petition No. 1 of 2016 (Prof. Ezekiel Kiprop v University of Eldoret). The Court framed four issues: the legality of the University Council to conduct disciplinary proceedings; whether the Court should interdict release of the disciplinary outcome; the alleged Article 47 fair administrative action violation; and jurisdiction and competency. On the Council's legality, the Court declined to make a finding, noting the question was not decisive and necessary parties were not joined, while observing that the definition of employer under the Employment Act, 2007 encompasses the Council, which under section 21 of the Charter has power over staff terms and conditions. On intervention in disciplinary processes, the Court applied its prior authorities, holding that intervention is exceptional and justified only by compelling reasons such as grave injustice and absence of alternative remedies; section 49 of the Employment Act provides sufficient post-decision remedies including reinstatement. The Article 47 claim was not determined as the process was unconcluded. The Court upheld its jurisdiction since the gravamen was employment rights, found the Petition competent, and dismissed the Petition with each party bearing its own costs.

Key legal issues

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01

Whether the Court may intervene mid-stream in an employer's disciplinary process

Holding

Intervention is an exception, not the norm; allowed only in very exceptional cases with compelling reasons such as grave injustice and absence of alternative remedies

Reasoning

The Court reviewed Aviation & Allied Workers Union v Kenya Airways, Joseph Mutura Mberia v JKUAT Council and Kenya Plantation & Agricultural Workers Union v Finlays Horticulture, extracting the common principle of exceptional intervention. Article 41 and sections 41, 43, 45 and 49 of the Employment Act, 2007 provide both procedural and substantive protections and primary remedies, so unfairness can be corrected after the decision rather than pre-empted. The Petitioner had alternative remedies including reinstatement.

p. 2
02

Jurisdiction - whether the Petition questioning the constitution of the Council fell outside the Court's jurisdiction

Holding

The Court had jurisdiction because the gravamen of the case was employment rights

Reasoning

The Respondents argued the Petition attacked the constitution of the Council. The Court held the core of the Petition concerned the Petitioner's employment contractual rights and fair treatment; the Council's constitution was only a ground raised in challenging the process, not the substance of the case. Being substantively grounded on employment rights, the matter fell within the Court's jurisdiction.

p. 3
03

Legality of the 1st Respondent's Council to conduct disciplinary proceedings

Holding

The Court declined to determine the question; the employer under the Employment Act is wide enough to encompass the Council and the Respondents, and section 21 of the Charter gives the Council power over staff terms

Reasoning

Relying on Joseph Mutuura Mbeeria, the Petitioner argued the Council was not legally constituted. The Respondents objected that the Cabinet Secretary and Council members were not joined. The Court found the nexus between the Council's validity and the disciplinary process intractable but unnecessary to resolve, noting the definition of employer under the Employment Act, 2007 encompasses the Council and that section 21 of the Charter empowers the Council over staff.

p. 2
04

Alleged violation of the right to fair administrative action under Article 47

Holding

Not determined because the disciplinary process was unconcluded and its outcome unknown

Reasoning

The Petitioner invoked Article 47 and the Fair Administrative Action Act, contending administrative action must be expeditious, efficient, lawful, reasonable and procedurally fair. The Court held it unnecessary to decide whether the right was implicated in employment contracts or violated, since the process had not concluded and its outcome remained unknown.

p. 3

Legal principles established

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  • Courts should not ordinarily interdict an employer from proceeding with a disciplinary process; intervention is exceptional and justified only where compelling reasons show grave injustice with no alternative remedy
  • The robust primary remedies for unfair termination under section 49 of the Employment Act give the Court sufficient leeway to correct unfairness after the employer's decision

Court orders

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  1. 1.The Petition is dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 232
  • Employment Actsections 41, 43, 45, 47, 49; definition of employer
  • Universities Actsection 36
  • Universities Act, 2012Charter for University of Eldoret, section 21
  • Fair Administrative Action Actnot specified

Cases cited (5)

  • Joseph Mutuura Mbeeria & Ar v Cabinet Secretary for Education, Science & Technology & 2 Ors
    (2014) eKLR
  • Aviation & Allied Workers Union v Kenya Airways
    (2012) eKLR
  • Joseph Mutura Mberia v Council of Jomo Kenyatta University of Agriculture & Technology (JKUAT)
    (2013) eKLR
  • Kenya Plantation & Agricultural Workers Union v Finlays Horticulture Kenya Ltd
    (2015) eKLR
  • Prof. Ezekiel Kiprop v University of Eldoret & Vice Chancellor of University of Eldoret (Nakuru Petition No. 1 of 2016)
Jurisdiction invoked
Article 41 of the Constitution and employment relationship under the Employment Act, 2007 (Court's jurisdiction upheld because the gravamen is employment rights)

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, "Hosea Sitienei v University of Eldoret & another [2016] KEELRC 1275 (KLR)", Case Analysis (2016). Petition No. 2 of 2016 (Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1275/eng@2016-05-03

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