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ELRCDismissedPetition filed 2 July 2015 (number not stated in judgment)· [2016] KEELRC 1489 (KLR)

Kiama Wangai v Egerton University [2016] KEELRC 1489 (KLR)

Employment and Labour Relations Court
23 March 2016
2,279 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 declined to stop a university disciplinary hearing, ruling employees get a fair chance to respond—not every document beforehand.

What this practically means

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Executive summary

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Prof. Kiama Wangai petitioned the Employment and Labour Relations Court at Nakuru on 2 July 2015 against Egerton University, seeking disclosure of disciplinary procedures, the committee's composition, complainants' identities, witness statements and documentary evidence before appearing before the University's Council Disciplinary Committee, invoking Articles 41 (fair labour practices), 47 (fair administrative action) and 50 (fair hearing). The disciplinary charges - insubordination, neglect of duty and sexual inappropriateness - were the culmination of a dispute dating from a September 2011 Faculty of Health Sciences meeting, with prior litigation including a defamation suit, a failed judicial review before Mulwa J, an appeal to the Court of Appeal and a dismissed stay application before Wendoh J. The Court held that Article 41 draws its content from section 41 of the Employment Act, 2007, which prescribes the irreducible minimum: sufficient detail of allegations, an opportunity to make representations and the right to be accompanied. An employer need not conduct a mini-court by disclosing all evidence, and contractual protections, if higher, must be scrupulously observed. Courts may intervene in pending disciplinary processes only in very exceptional circumstances. The Petitioner had, following a Court order of 27 July 2015, been furnished with the documents he sought. The Court declined to determine the applicability of Article 47 to employment contracts as an unargued complex question, dismissed the Petition on 23 March 2016, and directed each party to bear its own costs.

Key legal issues

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01

Content of the right to fair labour practices in disciplinary processes

Holding

Article 41 gives no contours; the courts amplify its content case by case, starting with section 41 of the Employment Act, 2007, which sets the irreducible minimum: sufficient detail of allegations, opportunity to make representations, and accompaniment during the process

Reasoning

The Court held that section 41 of the Employment Act, 2007 is the primary statutory source giving content to Article 41 as regards procedural fairness. The statute does not oblige the employer to disclose all documents or conduct a mini-court. Higher contractual protections, if any, must be scrupulously observed.

p. 4
02

When a court may intervene in a pending disciplinary process

Holding

Courts may and do intervene, but only in very exceptional circumstances, a principle with statutory support in the robust post-termination remedies of reinstatement and re-engagement

Reasoning

The Court reviewed emerging ELRC jurisprudence and held that the question is not whether the Court can intervene but when. Intervention before conclusion of the disciplinary process is reserved for exceptional cases, since an unfairly terminated employee enjoys robust remedies including reinstatement and re-engagement.

p. 4
03

Whether the Petitioner's Article 47 right required determination

Holding

It was unnecessary to address the applicability of Article 47 to employment contracts, being a complex question requiring in-depth address in a suitable prosecuted case

Reasoning

The Court declined to decide the Article 47 question because the parties had not fully argued it and the facts did not require it. It noted the Petitioner had been given the documents he sought after the Court's order, which largely disposed of the Petition.

p. 5

Legal principles established

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  • The basic essentials of the protections afforded an employee by Article 41 of the Constitution and section 41 of the Employment Act, 2007 are that the employee be informed in sufficient detail of the allegations, be afforded an opportunity to make representations, and be entitled to be accompanied during the process
  • Courts should interfere in a disciplinary process only in very exceptional circumstances, before its conclusion
  • An employer is not required by the prevailing statutory framework to conduct a mini-court in the name of a disciplinary process
  • Where parties have agreed higher contractual protections, an employer must scrupulously observe them

Court orders

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

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 50
  • Employment Act, 2007section 41 (including 41(1) and 41(2); also refers to sections 42(1) and 44(3) and (4))

Cases cited (10)

  • Patrick Abuya v Institute of Certified Public Accountants of Kenya (ICPAK) & Ar
    (2015) eKLR
  • John Joel Muchura & Ors v Kenya Revenue Authority
    (2015) eKLR
  • Wilson Khasakhala v Menengai Oil Refineries Ltd
    (2015) eKLR
  • Antony Mkala Chitavi v Malindi Water & Sewerage Company Ltd
    (2013) eKLR
  • Johnson Jadhan Othieno Okumu v. Pwani Oil Products Ltd
    (2013) eKLR
  • Judicial Service Commission v Gladys Boss Shollei & Ar
    (2014) eKLR
  • Rebecca Ann Maina & 2 Ors v Jomo Kenyatta University of Agriculture & Technology
    (2014) eKLR
  • Joseph Mutura Mberia & Ar v Council of Jomo Kenyatta University of Agriculture & Technology
    (2013) eKLR
  • Aviation & Allied Workers Union v Kenya Airways Ltd
    (2012) eKLR
  • Kenya Plantation & Agricultural Workers Union v Finlays Horticulture Kenya Ltd
    (2015) eKLR
Jurisdiction invoked
Articles 41, 47 and 50 of the Constitution (employment and labour relations jurisdiction of the ELRC)

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, "Kiama Wangai v Egerton University [2016] KEELRC 1489 (KLR)", Case Analysis (2016). Petition filed 2 July 2015 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1489/eng@2016-03-23

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