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ELRCAllowedConsolidated Petitions (interim applications)· [2020] KEELRC 681 (KLR)

Gerald Kanyaga Mathakia & another v Dedan Kimathi University of Technology [2020] KEELRC 681 (KLR)

Employment and Labour Relations Court
14 July 2020
2,744 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 stopped Dedan Kimathi University from cutting two professors' exit benefits without first consulting and hearing them.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nyeri by Nzioki wa Makau J. determined consolidated notice-of-motion applications for interim relief in two petitions filed by Prof. Wilson Muthakia and Prof. Moses Gachari Karoki, former Deputy Vice Chancellors of Dedan Kimathi University of Technology, against the University. Upon exiting their DVC positions, the Petitioners were allowed to resume academic positions retaining their basic salary and house allowance per Clause 24 of their appointment letters, terms implemented pursuant to an IPUCCF resolution. By letters dated 26th May 2020, the University, citing a directive from the Public Service Commission through the Ministry of Education dated 4th May 2020 declaring the IPUCCF terms null and void, reviewed the Petitioners' terms, substantially reducing their salaries from approximately Kshs. 432,256/- to Kshs. 248,890/-. The Petitioners argued the review violated Articles 41 and 47 of the Constitution, Section 4 of the Fair Administrative Actions Act and Section 10(5) of the Employment Act, as they were not heard. The Respondent contended it was merely implementing Clause 24(1) of the contracts, not altering them. The court, applying Republic v Chief of Staff ex parte Magoha, held that the review without consultation was procedurally unfair and that accrued contractual benefits could not be unilaterally withdrawn. The court granted an order staying the decision of 26th May 2020 and directed that the Petitioners continue earning their basic salaries and house allowances pending the hearing and determination of the Petitions.

Key legal issues

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01

Unilateral variation of contract of service without consultation

Holding

The review of the Petitioners' terms and conditions of service without consulting them entitles them to the interim relief sought

Reasoning

Reading Articles 41 and 47 of the Constitution, the Fair Administrative Actions Act and Section 10 of the Employment Act together, the court found that the letters of 26 May 2020 unilaterally reviewed the Petitioners' exit terms on the basis of a directive, with no consultation, notice of the nature and reasons for the action, or opportunity to be heard. Favourable contractual terms prevail under Section 26(2) of the Employment Act, so the stay was warranted.

p. 4
02

Entitlement to accrued contractual exit benefits

Holding

Accrued benefits cannot be unilaterally taken away

Reasoning

Relying on the decision in Republic v Chief of Staff & Head of the Public Service ex parte George A. O. Magoha, where Wasilwa J. held that accrued contractual exit package terms had already accrued to the applicant and the respondent could not unilaterally take them away, the court endorsed the principle that favourable contractual terms bind the employer.

p. 3

Legal principles established

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  • Where an administrative action would affect an individual, that individual should be given an opportunity to be heard
  • Terms of an employment contract can only change after consultation with the employee and the same notified to the employee in writing

Court orders

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  1. 1.An order issued to stay the decision of the Respondent purporting to replace the Petitioners' terms of service on exit of duty as communicated vide the Respondent's letters of 26th May 2020
  2. 2.The Petitioners shall continue to earn their basic salaries and house allowances pending hearing and determination of the Petitions

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47(1)(2) and (3); Article 41
  • Fair Administrative Actions ActSection 4
  • Employment ActSections 10(5) and 26(2)
  • Universities ActSection 35

Cases cited (7)

  • Republic v Chief of Staff & Head of the Public Service & 2 Others ex parte George A. O. Magoha
    [2018] eKLR
  • Elizabeth Kwamboka Khaemba v BOG Cardinal Otunga High School Mosocho & 2 Others
    [2014] eKLR
  • James Ang’awa Atanda & 10 Others v Judicial Service Commission
    [2017] eKLR
  • Maxwell Miyawa & 7 Others v Judicial Service Commission
    [2017] eKLR
  • Keroche Breweries Limited & 6 Others v Attorney General & 10 Others
    [2016] eKLR
  • State of U.P. & Ors v Maharaja Dharmander Prasad Singh
    [1989] AIR 997 1989 SCR (1) 176
  • The Registered Trustees De La Salle Christian Brothers t/a St. Mary’s Boys Secondary School v Julius D. M. Baini
    [2017] eKLR
Jurisdiction invoked
Articles 41 and 47 of the Constitution; Fair Administrative Actions Act; Employment Act

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, "Gerald Kanyaga Mathakia & another v Dedan Kimathi University of Technology [2020] KEELRC 681 (KLR)", Case Analysis (2020). Consolidated Petitions (interim applications). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/681/eng@2020-07-14

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