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ELRCPartially AllowedPetition dated 19th May, 2017· [2018] KEELRC 2602 (KLR)

Kisirkoi v Maasai Mara University & 3 others (Petition 8 of 2017) [2018] KEELRC 2602 (KLR)

Employment and Labour Relations Court
31 January 2018
7,048 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 reinstated a university deputy registrar, ruling his flawed disciplinary process and prolonged suspension amounted to unlawful, constructive termination.

What this practically means

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Executive summary

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The petitioner, employed by Maasai Mara University in 2009 as Deputy Registrar (Administration) and later appointed Acting Registrar, was suspended on 23rd February 2016 over the deployment of an unqualified officer, David Bungei, to the Kilgoris Learning Centre. His Acting Registrar appointment was revoked, his suspension outlasted the 90-day limit in the applicable Collective Bargaining Agreement, and the disciplinary hearing of 9th and 10th February 2017 proceeded with new, unparticularised allegations of inciting students, without representation of his choice or his witnesses, while the respondents were represented by counsel. The committee's decision was never communicated; his position was advertised and he was instead served with a retirement notice. The respondents, though they filed a reply and submissions, absented themselves from the ex parte hearing. Framing three issues - lawfulness of the termination/retirement, entitlement to relief, and costs - the court applied section 41 of the Employment Act and the fair hearing guarantees of Articles 41, 47 and 50 of the Constitution. It held that the respondents' actions and inactions amounted to constructive termination, that the disciplinary process was null and void ab initio, and that the prolonged suspension breached the CBA. Although accepting that reinstatement should be a rarity under the Lukorito Wasike principles, the court cautioned against hiding behind the common law to defeat rights under the transformative Constitution. The petition was allowed: declarations of nullity, a permanent injunction against replacement, reinstatement, six months' salary as compensation (Kshs. 1,207,917.00), payment of unpaid suspension dues, computation by the Commissioner for Labour, and costs against the respondents.

Key legal issues

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01

Whether the termination/retirement of the petitioner was lawful

Holding

The termination was unlawful; the respondents' actions and inactions amounted to constructive termination of employment

Reasoning

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.

p. 13
02

Whether the petitioner is entitled to the relief sought

Holding

Yes; having established unlawful termination, the petitioner was entitled to the relief sought

Reasoning

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.

p. 13

Legal principles established

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  • 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

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  1. 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. 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. 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. 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. 5.Reinstatement of the petitioner to employment as Deputy Registrar (Administration) with effect from the date of judgment
  6. 6.The petitioner to report back to work on 1st February, 2018 at 800 hours
  7. 7.Six months' salary as compensation for unlawful termination, Kshs. 1,207,917.00
  8. 8.The respondents to meet and pay the petitioner's salaries and allowances owing but unpaid during his suspension
  9. 9.The Commissioner for Labour, with involvement of the parties, to compute the amount payable within 120 days
  10. 10.Mention on 9th May, 2018 for a report on computation
  11. 11.Costs of the petition to be borne by the respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41(1)
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 35
  • Employment Act, 2007Section 41(1) and (2)
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 49(3)(a) and 49(4)
  • Employment Act, 2007Section 50
  • Employment Act, 2007Section 5(7)(c)
  • Fair Administrative Action Act, 2015Sections 4(1), 4(2), 4(3)(a), 4(3)(g), 4(4)(a), 4(4)(c) and 6
  • Universities Act, 2012Section 63(1)(a) and (b)
  • Industrial Court ActSection 12(3)(vii)

Cases cited (9)

  • D.K. Njagi Marete vs. Teachers Service Commission
    [2013] eKLR
  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    (2014) eKLR
  • Rebecca Ann Maina & 2 Ors v Jomo Kenyatta University of Agricultural and Technology
    (2014) eKLR
  • Joseph Mutura Mberia & Ar v Council of Jomo Kenyatta University of Agriculture and Technology (JKUAT)
    (2013) eKLR
  • Kenya Power & Lighting Company Limited v Aggrey Lukorito Wasike
    [2017] eKLR
  • Elizabeth Washeke and others versus Airtel (k) Ltd and Another
    Cause No 1972 of 2012
  • Julie Topirian Njeru v. Kenya Tourist Board
    Cause Number 886 of 2010
  • Kenya Airways Ltd case
  • New Zealand Education Institute vs. Board of Trustees of Auckland Normal Intermediate School
    [1994] 2 ERNZ 414 CA
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

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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, "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.