Kisirkoi v Maasai Mara University & 3 others (Petition 8 of 2017) [2018] KEELRC 2602 (KLR)
The bottom line
#Kenya's Employment Court reinstated a university deputy registrar, ruling his flawed disciplinary process and prolonged suspension amounted to unlawful, constructive termination.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination/retirement of the petitioner was lawful
The termination was unlawful; the respondents' actions and inactions amounted to constructive termination of employment
The disciplinary process was actuated by malice and bias; the petitioner served an elongated suspension contrary to the CBA; he was denied particulars of charges, representation of his choice and the right to call witnesses; the disciplinary committee's decision was never communicated, tantamount to constructive dismissal. The respondents adduced no evidence to controvert these claims, having failed even to produce the disciplinary proceedings. On a balance of probabilities the petitioner's case prevailed.
Whether the petitioner is entitled to the relief sought
Yes; having established unlawful termination, the petitioner was entitled to the relief sought
The court held that having succeeded on unlawful termination, the petitioner was entitled to the relief claimed. It nonetheless exercised its discretion on reinstatement by reference to the Lukorito Wasike principles, holding that although reinstatement should be a rarity, courts must be cautious not to hide behind the common law to deny employees rights under the transformative Constitution and the 2007 employment law reforms.
Legal principles established
#- Any form of termination of employment must be on objective and demonstrable grounds
- Section 41 of the Employment Act is mandatory; a termination following a flawed process without a fair hearing is unfair
- It is the employer's duty to produce the disciplinary proceedings as evidence of compliance with section 41
- Reinstatement is discretionary, not an automatic right, and should be a rarity granted only in exceptional circumstances
Court orders
#- 1.A declaration that the disciplinary process by the respondents violated Articles 41, 47 and 50 of the Constitution and is therefore null and void ab initio
- 2.A declaration that the petitioner's suspension violated Articles 41, 47 and 50 of the Constitution, is null and void and lifted in toto
- 3.A declaration that the suspension and continued suspension contravenes the Collective Bargaining Agreement inter partes and is null and void and lifted in toto
- 4.A permanent injunction restraining the respondents from commencing any process towards replacement of, or replacing the petitioner in the position of Deputy Registrar (Administration)
- 5.Reinstatement of the petitioner to employment as Deputy Registrar (Administration) with effect from the date of judgment
- 6.The petitioner to report back to work on 1st February, 2018 at 800 hours
- 7.Six months' salary as compensation for unlawful termination, Kshs. 1,207,917.00
- 8.The respondents to meet and pay the petitioner's salaries and allowances owing but unpaid during his suspension
- 9.The Commissioner for Labour, with involvement of the parties, to compute the amount payable within 120 days
- 10.Mention on 9th May, 2018 for a report on computation
- 11.Costs of the petition to be borne by the respondents
- Jurisdiction invoked
- Original petition invoking Articles 41, 47 and 50 of the Constitution of Kenya, 2010 and the employment jurisdiction of the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kisirkoi v Maasai Mara University & 3 others (Petition 8 of 2017) [2018] KEELRC 2602 (KLR)", Case Analysis (2018). Petition dated 19th May, 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2602/eng@2018-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.