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ELRCAllowedPetition No. 11 & 12 of 2020 (Consolidated)· [2020] KEELRC 47 (KLR)

Gerald Kanyago Mathakia & another v Dedan Kimathi University of Technology [2020] KEELRC 47 (KLR)

Employment and Labour Relations Court
10 November 2020
3,241 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that a government directive cannot retroactively cut benefits already promised in older employment contracts.

What this practically means

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Executive summary

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Two consolidated petitions by former Deputy Vice-Chancellors of Dedan Kimathi University of Technology challenged the University's letter dated 26th May 2020, which replaced their exit terms of service with those of a Full Professor, substantially reducing the 2nd Petitioner's basic salary. Both Petitioners had contracts dated 2013/2014 whose Clause 24 entitled them, upon expiry of their five-year DVC tenures in July 2018, to retain their basic salary and rate of house allowance; this was confirmed by the University's letters of 19th June 2018 and 2nd July 2018, and honoured until May 2020. The variation followed a directive of the Cabinet Secretary, Ministry of Education, requiring university terms to conform with a Public Service Commission advisory. The Respondent argued the exit salary was expressly pegged to the public service under Clause 24(i) and that implementing the circular was neither unfair administrative action nor unfair labour practice. The Court declined to engage with the rival interpretations of Clause 24, framing the question as whether the Respondent was permitted in law to do what it did. It held the Petitioners' terms were insulated because their contracts predated the circular, that a ministerial circular cannot have retroactive effect, and that their terms were subject to University Council determinations, not the Cabinet Secretary or the Ministry. The Court allowed both petitions, issuing a declaration of illegality, certiorari quashing the 26th May 2020 letter, prohibition against interference with the contractual exit terms, mandamus compelling adherence to Clause 24, and costs to the Petitioners on both petitions.

Key legal issues

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01

Whether the Respondent could lawfully vary the Petitioners' exit terms by the impugned letter of 26th May 2020

Holding

The variation was illegal, unlawful, null and void; the Petitioners' exit terms were contractually secured under Clause 24 and preserved by the letters dated 19th June 2018 and 2nd July 2018.

Reasoning

The Court held the Petitioners' terms were insulated from the 2020 ministerial directive because their contracts predated it. The negotiated exit benefits were preserved in their contracts, and the proper organ for determining their terms was the University Council, not the Cabinet Secretary or the Ministry. The impugned letter therefore had no legal effect and was quashed, with prohibition and mandamus issuing to protect and enforce the contractual terms.

p. 3
02

Whether the Cabinet Secretary's circular of 4th May 2020 had retroactive effect on the Petitioners' contracts

Holding

The circular could not alter contracts entered into before the directive.

Reasoning

The Court reasoned that a directive issued in May 2020 could not apply retrospectively to employment contracts concluded in 2013 and 2014. Retroactive application would undo vested contractual rights. The Petitioners' terms had also been negotiated through the Inter Public Universities Council's Consultative Forum and preserved contractually, so the circular's directive to conform exit terms to public service guidelines could not disturb them.

p. 3

Legal principles established

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  • A ministerial circular cannot have retroactive effect so as to alter contracts entered into before the directive.
  • The Petitioners' terms of service were subject to determinations by the University Council, not the Cabinet Secretary or the Ministry.

Court orders

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  1. 1.A declaration that the purported variation of the Petitioners' terms and conditions of service in the Respondent's letter dated 26th May 2020 is illegal, unlawful, null and void in so far as the Petitioners are concerned
  2. 2.An Order of Certiorari quashing the letter dated 26th May 2020 issued by the Respondent purporting to replace the Petitioners' terms of service on exit with the terms and conditions of service of a Full Professor
  3. 3.An Order of Prohibition prohibiting the Respondent from amending, varying, vacating or in any way interfering with the Petitioners' terms and conditions of service as set out in Clause 24 of the Contract dated 25th February 2014 and the Respondent's letters dated 19th June 2018 and 2nd July 2018
  4. 4.An Order of Mandamus compelling the Respondent to adhere to the provisions of Clause 24 of the Petitioners' Contracts and the Respondent's letters dated 19th June 2018 and 2nd July 2018 without variation or amendment
  5. 5.The Petitioners be entitled to costs on the 2 Petitions

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 260
  • Fair Administrative Action ActSection 4
  • Employment Act

Cases cited (2)

  • Republic v Chief of Staff & Head of the Public Service & 2 Others ex parte George A. O. Magoha
    [2018] eKLR
  • St. Mary's Boys Secondary School v Julius D. M. Baini
    [2017] eKLR
Jurisdiction invoked
Constitutional petition under Articles 47 and 23 of the Constitution read with the Fair Administrative Action Act, 2015 and the Employment Act, 2007

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, "Gerald Kanyago Mathakia & another v Dedan Kimathi University of Technology [2020] KEELRC 47 (KLR)", Case Analysis (2020). Petition No. 11 & 12 of 2020 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/47/eng@2020-11-10

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