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ELRCDismissedPetition No 5 of 2020· [2020] KEELRC 574 (KLR)

Muthusi & 6 others v Khoja Shia Ithna Ashari Education Board t/a Jaffery Academy (Petition 5 of 2020) [2020] KEELRC 574 (KLR)

Employment and Labour Relations Court of Kenya
29 July 2020
JRJames Rika
5,488 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that COVID-19 pay cuts were lawful because the school consulted teachers first — consultation doesn't require agreement.

What this practically means

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Executive summary

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Two teachers employed by a private school petitioned the Employment and Labour Relations Court, challenging the school's categorisation of staff into Critical, Essential and Non-Essential groups and the resulting 45% and 65% pay-cuts imposed from May 2020 following the Covid-19 closure of schools. They claimed violations of Articles 41, 27, 28, 29 and 47 of the Constitution and Section 10(5) of the Employment Act, alleging the pay reduction was unilateral, unconsulted, discriminatory and not commensurate with the school's fee reductions, and sought declarations and damages. They also pursued an unopposed contempt application founded on an alleged breach of a consent order of 5th June 2020. The Respondent, a fee-dependent private institution facing parental fee-reduction demands and loss of revenue, argued the pay-cuts followed consultations, were necessary for business continuity and retention of all 136 staff, and that the petitioners should have filed an ordinary claim and lacked capacity to litigate as individuals. The Court found no valid contempt application had been transmitted to it and expunged the petitioners' further affidavit filed without leave, observing abuse of process. On capacity, the Court held individuals may petition directly under Article 22 and that there is no material difference between a Petition and a Claim under the E&LRC Procedure Rules. On the merits, the Court held Section 10(5) requires consultation, not agreement; consultations occurred; constructive dismissal requires resignation, which had not happened; and the employer acted reasonably in revising rather than terminating contracts amid the pandemic. The Petition was declined in its totality with no order on costs.

Key legal issues

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01

Whether the unilateral categorisation of teachers and imposition of 45%/65% pay-cuts violated Article 41 of the Constitution and Section 10(5) of the Employment Act

Holding

No violation. Consultations took place through virtual staff meetings; Section 10(5) requires consultation, not agreement, and the Respondent's decision was not unilateral

Reasoning

The Court found virtual meetings took place between March and May 2020, acknowledged by both parties, giving staff a period of consultation and mental adjustment. Section 10(5) obliges the employer to consult, revise the contract and notify the employee in writing, but the word 'agreement' does not feature in the provision. The employee is free to reject the revised terms, but declining revised terms does not invariably amount to constructive dismissal. The Respondent, sustaining 136 employees amid a pandemic, acted reasonably.

p. 7
02

Whether constructive dismissal was established

Holding

No; constructive dismissal requires resignation by the employee, which has not occurred

Reasoning

Following Coca Cola East and Central Africa Limited v. Maria Kagai Ligaga, constructive dismissal involves an employee resigning because of a change in fundamental terms of the contract, believing the employer no longer wishes to be bound. The Petitioners remain in employment and have not resigned. The intolerable work environment, if any, was created by the pandemic, not the employer, who bent backwards to retain staff.

p. 7
03

Whether the Petitioners had capacity to bring the Petition rather than an ordinary claim

Holding

Yes; Article 22 and the procedural rules grant individuals a direct route to court, and petitions are a proper mode in this Court

Reasoning

Article 22 guarantees every person the right to institute court proceedings claiming a Bill of Rights violation. Rule 7 of the E&LRC Procedure Rules allows enforcement of constitutional rights in a Statement of Claim or other suit. The Respondent's insistence on a Claim rather than a Petition is no longer legally tenable given the procedural rules and their overriding objective of access to justice.

p. 6
04

Whether the contempt application was properly before the Court

Holding

No valid contempt application was before the Court; it was never transmitted to the trial judge and no breach of the consent order was demonstrated

Reasoning

The Deputy Registrar confirmed no contempt application was received. A party accused of contempt must be given a fair chance to defend the accusations; the Petitioners gave the Respondent no room to respond and filed the application close to the date final directions issued. The Further Affidavit was similarly filed outside the disposal orders without leave and was expunged.

p. 5

Legal principles established

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  • Section 10(5) of the Employment Act requires consultation, revision of the contract and written notification, but does not require that consultation ends in agreement between employer and employee
  • There can be no constructive dismissal without resignation by the employee, who must resign within a reasonable time of the employer's decision
  • A constitutional petition is an available mode of seeking remedies in the Employment and Labour Relations Court; there is little or no difference between a Petition and a Statement of Claim under the E&LRC Procedure Rules 2016
  • Further affidavits after pleading is closed may only be filed with the leave of the Court under Rule 21(2) of the Mutunga Rules

Court orders

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  1. 1.The Petition is declined in its totality
  2. 2.No order on the costs
  3. 3.The Further Affidavit sworn by the 1st Petitioner is expunged from the record

Authorities

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Legislation

  • Constitution of KenyaArticles 22, 258, 27, 28, 29, 41, 47
  • Employment Act 2007Section 5; Section 10(1); Section 10(5)
  • Constitution of Kenya [Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution] Practice and Procedure Rules [Mutunga Rules]Rule 4; Rule 21(2)
  • Employment and Labour Relations Court [Procedure] Rules 2016Rule 7
  • Employment and Labour Relations Court Actnot specified

Cases cited (9)

  • Kenya County Government Workers Union v. Wajir County Government & Another
    [2020] e-KLR
  • Kenya Game Hunting and Safari Workers Union v. Lewa Wildlife Conservancy Limited
    [2014]
  • Aviation and Allied Workers Union v. Kenya Airways Limited & 3 others
    [2012] e-KLR
  • Anarita Karimi Njeru v. Republic
    [1979] e-KLR
  • Kenya Bus Services Limited & 2 others v. Attorney-General & 2 others
    [2005] e-KLR
  • Stanley Matiba v. Attorney-General
    H.C. Misc. App. No. 666 of 1990
  • Kenya Airways v. Wainaina Mbugua
    [2019] eKLR
  • GMV v Bank of Africa Kenya Limited
    [2013] e-KLR
  • Coca Cola East and Central Africa Limited v. Maria Kagai Ligaga
    [2015] e-KLR
Jurisdiction invoked
Article 22 of the Constitution; Rule 7 of the Employment and Labour Relations Court [Procedure] Rules 2016; Rule 4 of the Mutunga Rules

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, "Muthusi & 6 others v Khoja Shia Ithna Ashari Education Board t/a Jaffery Academy (Petition 5 of 2020) [2020] KEELRC 574 (KLR)", Case Analysis (2020). Petition No 5 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/574/eng@2020-07-29

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