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ELRCPartially AllowedCause No 352 of 2016· [2017] KEELRC 1848 (KLR)

Josphat K. Z. Mwatelah v Technical University of Mombasa Council & 2 others [2017] KEELRC 1848 (KLR)

Employment and Labour Relations Court
27 January 2017
OMO. N. Makau
3,510 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled only a university council can fire its Vice Chancellor, awarding Prof. Chillo eighteen months' salary plus benefits for unfair termination.

What this practically means

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Executive summary

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The claimant, engaged as Vice Chancellor of Technical University of Mombasa on a five-year fixed term contract from 8.7.2013, was suspended in February 2016 following anonymous complaints relayed by the Principal Secretary. After a disciplinary process, the University Council found him guilty of 8 of 10 charges and, by majority, sentenced him to a stern warning with resumption of duty. The Council Chairman nonetheless forwarded the minutes, a dissent and audit reports to the Cabinet Secretary, who purported to terminate the claimant's contract through a letter dated 11.5.2016 communicated via mass media. The court framed four issues, principally whether the CS had authority to terminate. It held that under section 39(1)(a) of the Universities Act the CS appoints the VC only on the Council's recommendation, and by section 51(2) of the Interpretation and General Provisions Act any corresponding removal power would equally require Council recommendation. The Act, Charter, Statutes and terms of service vest discipline exclusively in the Council, so the CS lacked authority and the termination was ultra vires and unlawful, the CS having no privity of contract. Notably, the CS acted against express legal advice from the Attorney General. On unfairness, the employer proved valid reasons, having convicted the claimant of 8 of 10 charges, but the enhancement of a stern warning to termination without a fresh hearing was procedurally unfair and condemned him unheard. Because TUM ratified the CS's action, the court declined to declare the termination null and void or grant reinstatement, and dismissed the injunction prayer as interim only. It declared the termination unfair and awarded six months' salary in lieu of notice, twelve months' gross salary as compensation, all accrued benefits and terminal dues, plus costs and interest.

Key legal issues

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01

Whether the CS had legal or contractual authority to terminate the claimant's employment

Holding

The CS lacked authority under the Universities Act, the TUM Charter, TUM Statutes and the terms of service; only the Council, as employer, could discipline and terminate the VC.

Reasoning

Section 39(1)(a) of the Universities Act requires the CS to appoint the VC competitively on the recommendation of the Council. Section 51(2) of the Interpretation and General Provisions Act makes a removal power likewise subject to recommendation where appointment power is so conditioned. The Act, Charter and Statutes vest recruitment, terms of service and discipline exclusively in the Council. The termination letter of 11.5.2016 was therefore ultra vires and issued by a party with no privity of contract with the claimant.

p. 4
02

Whether the termination by the CS was unlawful, null and void

Holding

The termination was unlawful because it was effected by someone who was not the claimant's employer, but the court declined to declare it null and void because the employer ratified it.

Reasoning

Having found the CS had no legal or contractual authority, the termination letter was ultra vires and unlawful, as the CS had no privity of contract. However, TUM associated itself with the CS's wrong through its pleadings, evidence, testimony of RW1 and submissions, effectively constructively terminating the claimant itself. The court therefore treated the letter as an unlawful but ratified termination rather than a nullity.

p. 5
03

Whether the termination was unfair

Holding

Yes - the reasons were valid and fair, but the procedure was unfair because the employer enhanced the Council's sentence of stern warning to termination without a fresh hearing.

Reasoning

Under sections 43 and 45 of the Employment Act the employer proved valid reasons, since the claimant was found guilty of 8 of 10 charges and did not appeal. But the Council had sentenced him to a stern warning on 4.5.2016; converting that to termination by ratifying the CS's letter amounted to condemning him unheard, contrary to justice and equity under section 45(4).

p. 5

Legal principles established

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  • Where a statutory appointment power is exercisable only upon the recommendation of another body, the corresponding power to remove is likewise subject to that recommendation; the CS who appoints a Vice Chancellor on the Council's recommendation cannot terminate the VC's employment.
  • Parliament did not intend to give the Cabinet Secretary power to dismiss a Vice Chancellor; the power to discipline and terminate rests with the University Council as employer.
  • An employer that has convicted and sentenced an employee through a fair disciplinary process is estopped from enhancing the sentence without a fresh fair hearing; such enhancement is unfair termination under section 45 of the Employment Act.

Court orders

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  1. 1.Declaration that the termination of the claimant's employment was unfair
  2. 2.Six months gross salary in lieu of notice
  3. 3.Twelve months gross salary as compensation for unfair termination
  4. 4.All benefits and terminal dues accruing from the contract of employment, tabulated by the 1st respondent and filed within 30 days for adoption by the court
  5. 5.Costs of the suit plus interest
  6. 6.Dismissal of the prayer for an injunction
  7. 7.Refusal to declare the termination letter null and void

Authorities

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Legislation

  • Universities Actsections 35(1)(a)(i) & (b), 39(1)(a), 40
  • Interpretation and General Provisions Act (Cap 2)section 51(1) and (2)
  • Public Officers Ethics Act (Cap 183)sections 8, 9 and 17
  • Leadership and Integrity Act (Cap 182)sections 3, 10, 11, 12 & 13
  • Employment Actsections 41, 43(1), 45(2), 45(4), 45(5), 49(1)
  • Constitution of KenyaArticles 10, Chapter 6, Chapter 12, Chapter 13
  • TUM Chartersection 24(1) and (4)(a)
  • TUM Statutes (Statute V section 3; Statute XXI section 7(iv))Statute V s.3; Statute XXI s.7(iv)
  • Terms of Service for the Vice Chancellor of TUM (8.8.2014)clauses 28(1), 28(2), 28(3), 28(4)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; Universities Act framework)

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, "Josphat K. Z. Mwatelah v Technical University of Mombasa Council & 2 others [2017] KEELRC 1848 (KLR)", Case Analysis (2017). Cause No 352 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1848/eng@2017-01-27

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