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ELRCPartially AllowedCause No 1259 of 2013· [2019] KEELRC 2047 (KLR)

Solomon Mummah v Kenyatta University [2019] KEELRC 2047 (KLR)

Employment and Labour Relations Court
22 March 2019
4,454 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyatta University's dismissal of a lecturer was ruled unfair because it skipped key procedural steps, costing the university over Kshs. 1.3 million.

What this practically means

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Executive summary

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In this first-instance employment claim, a former Kenyatta University Tutorial Fellow (later Lecturer) sued over his dismissal by letter dated 11.06.2012 following suspension for alleged rudeness, complaints from PhD students about lecture quality, and insubordination towards the Chairperson of the Department of Psychology. He sought a declaration of unfair termination and damages exceeding Kshs. 71 million; the university filed a defence and counterclaim for Kshs. 500,000.00. The court found the suspension letter signed by the Deputy Vice-Chancellor (Administration) contrary to clause 9.4 of the terms of service, which vested suspension powers in the Vice-Chancellor, rendering the disciplinary process unfair under section 45(2)(c) of the Employment Act, 2007. The court further held that the university acted unfairly by deciding the case in the absence of the claimant and his advocate, whose inability to attend had been explained, and without considering the written defence on record. On substance, the employer failed to justify the dismissal grounds: no written warnings, no exhibited student complaints, and no specification of allegedly insulting words, following CMC Aviation Limited v Mohammed Noor. The claimant obtained a declaration of unfair, illegal, null and void termination, 8 months' salary compensation of Kshs. 1,365,416.00 under section 49, a certificate of service under section 51, and costs of the suit. All other heads of claim failed for lack of evidence or particulars, including the Kshs. 16 million restitution claim. The counterclaim failed as time-barred under section 90, res judicata, an afterthought, and unproven; each party to bear own costs of the counterclaim.

Key legal issues

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01

Fair procedure of termination - authority to suspend

Holding

The suspension by the Deputy Vice-Chancellor (Administration) without the Vice-Chancellor forming an opinion under clause 9.4 rendered the process unfair under section 45(2)(c).

Reasoning

Clause 9.4 of the terms of service vested the power to suspend in the Vice-Chancellor upon forming an opinion of good cause. The respondent admitted the clause bound the parties, and its general disciplinary docket under Statute VIII could not override the specific contractual term. The suspension letter therefore flowed into an unfair disciplinary process.

p. 3
02

Alleged bias of disciplinary participants

Holding

Absent a statutory or contractual provision barring previously involved persons from sitting, mere involvement does not of itself render the process unfair.

Reasoning

The Court held that a disciplinary case is between employer and employee; strict independence cannot be imposed unless statute or contract prescribes it. Section 41 requires only notice and a chance to be heard; the employee must show manifest procedural injustice to establish unfair procedure.

p. 3
03

Procedural unfairness in deciding without the claimant and his advocate

Holding

The respondent acted unfairly by proceeding and determining the case in the absence of the claimant and his advocate who had given an undisputed reason for non-attendance, and without considering the written defence.

Reasoning

Having allowed the claimant to believe the advocate would be facilitated, a legitimate expectation arose. The respondent did not object to legal representation. Proceeding to decide in the absence of both, and failing even to consider the written defence on record, fell short of the fair procedure required by sections 41 and 45(2)(c) of the Employment Act.

p. 4
04

Valid and genuine reasons for termination

Holding

The respondent failed to establish the grounds for dismissal: no written warnings were issued, no student complaints were exhibited or proved, and the alleged insulting words were not specified.

Reasoning

Under sections 43 and 47(5) of the Employment Act the employer bears the burden of justifying the grounds. The alleged PhD student complaints were not exhibited; no written warning was given as the CBA required; and the alleged offensive memo did not show the claimant refused all memos, only malicious ones. Following CMC Aviation Ltd v Mohammed Noor, the employer had to specify the abusive words and failed to do so.

p. 4
05

Counterclaim of Kshs. 500,000.00

Holding

The counterclaim failed as time-barred under section 90 of the Employment Act, res judicata, an afterthought, and unproven.

Reasoning

The injury was continuing and ceased on separation on 11.06.2012, so the counterclaim filed on 06.11.2014 exceeded the 12-month limitation under section 90. It could have been pursued in Cause 250 of 2012; no disciplinary action was taken on the claim; and no evidence showed payment of the Kshs. 500,000.00.

p. 5

Legal principles established

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  • Where a contractual term specifically vests disciplinary powers in a named officer, general docket duties of another officer cannot defeat that specific term.
  • An employer need not be a neutral arbiter in disciplinary proceedings; unfairness requires manifest procedural injustice absent a statutory or contractual bar on participation of involved persons.
  • The employer must specify the alleged abusive or insulting words to discharge the burden under section 47(5) of the Employment Act, 2007.
  • Where an employer leads an employee to believe legal representation will be facilitated, proceeding in the absence of the employee and advocate who explained their absence is procedurally unfair.

Court orders

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  1. 1.Declaration that the respondent's termination of the claimant's contract of employment was unfair, illegal, null, and void ab initio
  2. 2.Respondent to pay the claimant Kshs.1,365,416.00 by 01.06.2019, failing interest at Court rates from the date of judgment till full payment
  3. 3.Respondent to deliver the certificate of service to the claimant by 15.04.2019
  4. 4.Respondent to pay claimant's costs of the suit
  5. 5.Each party to bear own costs of the counterclaim

Authorities

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Legislation

  • Employment Act, 2007section 44(4)
  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 45(2)(c)
  • Employment Act, 2007section 47(5)
  • Employment Act, 2007section 49
  • Employment Act, 2007section 51
  • Employment Act, 2007section 90
  • Kenyatta University (Amendment) Act, 1991section 16; Schedule 3
  • Statute XIV (Kenyatta University)clause 2(23)
  • UASU-CBAArticle 8

Cases cited (2)

  • Republic -Versus- Arnold Karani Njiru, Fund Account Manager, Laikipia East Costituency Fund and 10 Others Ex-parte Amin Mohammed Ali
    [2015]eKLR
  • CMC Aviation Limited -Versus- Mohammed Noor
    [2015]eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Solomon Mummah v Kenyatta University [2019] KEELRC 2047 (KLR)", Case Analysis (2019). Cause No 1259 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2047/eng@2019-03-22

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