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ELRCPartially AllowedNot stated in judgment· [2020] KEELRC 1856 (KLR)

Erastus Sifunjo Kisaka v University of Nairobi [2020] KEELRC 1856 (KLR)

Employment and Labour Relations Court
20 January 2020
HWHellen Wasilwa
3,123 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that suspending an employee for months without a disciplinary hearing is unfair, and ordered the University of Nairobi to conclude its stalled process within three months.

What this practically means

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Executive summary

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The Petitioner, a lecturer in the University of Nairobi's Department of Finance and Accounting with over 21 years of service, was suspended on half pay on 25 September 2018 after allegations that he attempted to extort money from a student to release examination results. He moved the Court seeking to set aside the suspension, to restrain his termination, and ultimately reinstatement, contending that the Respondent had never convened a disciplinary hearing, furnished him with evidence, or accorded him fair administrative action and fair labour practices under Articles 41 and 47 of the Constitution. The Respondent, through a Replying Affidavit of Prof. Isaac Mbeche, maintained that the suspension was a lawful administrative, non-punitive step pending a disciplinary committee which was in the process of being convened, and that the Petition was premature and bad in law. Applying the principles in Rebecca Ann Maina v JKUAT and Kenya Plantation & Agricultural Workers Union v Finlays, that the Court should not take over managerial prerogative and may intervene in disciplinary processes only in exceptional circumstances, the Court nonetheless found that the suspension, which had persisted for almost three months without any disciplinary hearing, was punitive and breached Article 41. Rather than setting aside the suspension, the Court directed the Respondent to conclude the stalled disciplinary process within three months, failing which the suspension would stand waived, and restrained the Respondent from terminating the Applicant unless the process was conducted fairly and justly or pending determination of the Petition. Costs were awarded in the cause.

Key legal issues

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01

Whether indefinite suspension without a disciplinary hearing constitutes an unfair labour practice

Holding

Yes. Suspension of almost three months' duration without a disciplinary process is punitive and breaches Article 41

Reasoning

The Court noted the Applicant was suspended on 25/9/2018 and filed the application on 14/1/2019, nearly three months later, without being subjected to any disciplinary hearing and without any orders barring the process. The Court held that such prolonged suspension without any disciplinary process being carried out is punitive and a breach of the constitutional right to fair labour practices, and should not be condoned.

p. 4
02

Extent of the Court's intervention in an employer's internal disciplinary process

Holding

Intervention must be exceptional; the Court will not take over managerial prerogative but may put a stalled process back on track, with a default sanction if the employer delays

Reasoning

Applying Radido J's decision in Kenya Plantation & Agricultural Workers Union v Finlays and Ndolo J's decision in Rebecca Ann Maina, the Court held it has jurisdiction to intervene only in exceptional cases where grave injustice would be occasioned. Rather than setting aside the suspension, the Court directed the Respondent to conclude the disciplinary process within three months, failing which the suspension would stand waived, and restrained termination pending a fair process.

p. 3

Legal principles established

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  • Prolonged suspension of an employee without any disciplinary process is punitive and a breach of Article 41 of the Constitution on fair labour practices
  • The Court should not unduly interfere with an employer's internal disciplinary process unless the process is flawed; its interference is limited to putting the process back on track

Court orders

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  1. 1.The Respondent to proceed with the stalled disciplinary process against the Applicant within 3 months from the date of judgment, in default of which the suspension would stand waived
  2. 2.The Respondents restrained from terminating the services of the Applicant unless the disciplinary process is conducted fairly and justly or until the hearing and determination of the Petition, whichever comes earlier
  3. 3.Costs in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 27(1)
  • Constitution of KenyaArticle 27(2)
  • Constitution of KenyaArticle 28
  • Constitution of KenyaArticle 35
  • Constitution of KenyaArticle 35(2)
  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 41
  • Constitution of KenyaArticle 23(3)
  • Fair Administrative Action ActSection 4(1)
  • Employment ActNot specified

Cases cited (12)

  • Severine Luyali v Ministry of Foreign Affairs & International Trade & 3 others
    [2014] eKLR
  • Bella Vista Restaurant Mombasa Limited v KRA
    [2016] eKLR
  • Peter Kariuki & 16 others v Kenya Agricultural Research Institute
    [2013] eKLR
  • Diana Kethi Kilonzo v Independent Electoral and Boundaries Commission and 10 others
    [2013] eKLR
  • Giella v Casman Brown
    [1973] EA 358
  • Mrao Limited v First American Bank of Kenya Limited & 2 others
    [2003] KLR 125
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • Corn Products Kenya Limited v Corn Products Kenya Limited & another
    [2014] eKLR
  • Rebecca Ann Maina & 2 others v Jomo Kenyatta University of Agriculture and Technology
    [2014] eKLR
  • Kenya Plantation & Agricultural Workers Union v Finlays Horticulture Kenya Ltd
    [2015] eKLR
  • Alfred Nyungu Kimungui v Bomas of Kenya
    [2013] eKLR
  • Dorothy Njoki Ndung'u v Machakos University College & another
    [2017] eKLR
Jurisdiction invoked
Constitution of Kenya, 2010, Article 23(3) (enforcement of Bill of Rights); Articles 41 and 47 (fair labour practices and fair administrative action)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Erastus Sifunjo Kisaka v University of Nairobi [2020] KEELRC 1856 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1856/eng@2020-01-20

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