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ELRCPartially AllowedCause No 1380 of 2013· [2019] KEELRC 2422 (KLR)

Mwaniki Silas Ngari v Kisii University [2019] KEELRC 2422 (KLR)

Employment and Labour Relations Court
31 January 2019
OMOnesmus N. Makau
5,199 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that when a new law abolished his university position, the academic's contract was frustrated, not unfairly terminated—though the university still owed him unpaid allowances.

What this practically means

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Executive summary

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The claimant, an Associate Professor of Egerton University seconded on a 5-year fixed-term contract as Deputy Principal Academic Affairs (DPAA) of Kisii University College from 1.11.2010, sued Kisii University after the college attained full university status in February 2013. Following the Universities Act 2012 and the University Charter, the DPAA position disappeared from the new establishment, its functions passing to the Deputy Vice Chancellor (Academic Affairs). The claimant acted as DVCAA from 6.2.2013 until handing over to a substantive appointee on 26.8.2013, after which he was excluded from work despite conservatory orders and contempt findings against the Vice Chancellor and Council Chairman. He sought declarations of constructive dismissal and violation of Articles 27, 28, 41 and 47, benefits totalling Kshs.9,029,790, general damages and permanent injunctions. The court found the contract was frustrated by operation of the law, not constructively terminated, and that no constitutional violations were proved. However, it found the respondent breached the claimant's terms by failing to pay his acting DVCAA responsibility allowance for 7 months (Kshs.254,290) and his passage and baggage allowance (Kshs.25,000). Judgment was entered for Kshs.279,290 subject to statutory deductions, with a declaration on undisputed salary increments, plus costs and interest at court rates from filing. General damages, injunctions and the Kshs.9 million claim were refused.

Key legal issues

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01

Constructive dismissal vs frustration by operation of law

Holding

The contract was frustrated by operation of the law, not constructively terminated

Reasoning

The Universities Act 2012 and the Kisii University Charter restructured university governance, and the Charter's membership provisions did not include the DPAA position, whose functions passed to the DVCAA. The claimant adduced no evidence that the Council created or budgeted for the DPAA position, so the contract became impossible to continue.

p. 6
02

Violation of constitutional rights (Articles 27, 28, 41, 47)

Holding

Not proved; the respondent's treatment of the contract as frustrated was lawful

Reasoning

Since the contract was lawfully frustrated by operation of law, the farewell correspondence and failure to recall the claimant to work did not amount to discrimination, indignity, unfair labour practice or unfair administrative action on a balance of probability.

p. 6
03

Entitlement to acting DVCAA allowance

Holding

Claimant acted as DVCAA for 7 months, not 4, and is entitled to 10% responsibility allowance

Reasoning

Documentary evidence including letters and the handing over report proved he acted until 26.8.2013 despite a 4-month appointment letter. The 10% of basic pay (Kshs.36,327.20 monthly) for 7 months totals Kshs.254,290.40.

p. 6
04

Salary increments and passage and baggage allowance

Holding

Undisputed salary increments declared; admitted passage and baggage allowance of Kshs.25,000 allowed

Reasoning

The appointment letter provided a starting basic salary of Kshs.239,217 rising to a maximum of Kshs.290,122, but the claimant exited at Kshs.363,272, proving entitlement to the increments. The passage and baggage allowance was admitted in evidence.

p. 7

Legal principles established

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  • A contract of service may be terminated through frustration arising from operation of the law, which discharges the parties from further liability
  • Where a statutory charter abolishes a position from a university's staff establishment, the incumbent's fixed-term contract is frustrated

Court orders

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  1. 1.Judgment entered for the claimant against the respondent for acting allowance for 7 months of Kshs.254,290
  2. 2.Passage and baggage allowance of Kshs.25,000 awarded
  3. 3.Total award of Kshs.279,290 payable subject to statutory deductions
  4. 4.Declaration that the claimant was entitled to the undisputed salary increments up to Kshs.363,272 per month
  5. 5.Costs of the suit awarded to the claimant
  6. 6.Interest at court rates from the date of filing suit

Authorities

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Legislation

  • Universities Actsections 40, 72, 74, 76(2), 80(4), 81(1)
  • Kisii University College Order 2007section 7
  • Kisii University CharterArticles 12, 25, 34
  • Constitution of KenyaArticles 27, 28, 30, 40(2), 41, 47
  • Egerton University Actrepealed by Universities Act 2012

Cases cited (1)

  • Justice Philip Tunoi and Another vs Judicial Service Commission and Another
    [2015] eKLR
Jurisdiction invoked
Employment and labour relations dispute under the Employment and Labour Relations Court's statutory jurisdiction (Universities Act 2012 and contract of service in issue)

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, "Mwaniki Silas Ngari v Kisii University [2019] KEELRC 2422 (KLR)", Case Analysis (2019). Cause No 1380 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2422/eng@2019-01-31

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