Solomon Mummah v Kenyatta University [2019] KEELRC 2047 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Fair procedure of termination - authority to suspend
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).
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.
Alleged bias of disciplinary participants
Absent a statutory or contractual provision barring previously involved persons from sitting, mere involvement does not of itself render the process unfair.
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.
Procedural unfairness in deciding without the claimant and his advocate
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.
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.
Valid and genuine reasons for termination
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.
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.
Counterclaim of Kshs. 500,000.00
The counterclaim failed as time-barred under section 90 of the Employment Act, res judicata, an afterthought, and unproven.
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.
Legal principles established
#- 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
#- 1.Declaration that the respondent's termination of the claimant's contract of employment was unfair, illegal, null, and void ab initio
- 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.Respondent to deliver the certificate of service to the claimant by 15.04.2019
- 4.Respondent to pay claimant's costs of the suit
- 5.Each party to bear own costs of the counterclaim
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kerrow & 40 others v Kenya Power & Lighting Co Limited (Employment and Labour Relations Cause E041 of 2022) [2023] KEELRC 1608 (KLR)[2023] KEELRC 1608 (KLR)4 Jul 2023
Cite this brief
#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.