Mathooko v Machakos University (Cause E946 of 2021) [2020] KEELRC 1937 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Breach of employment contract through unilateral variation of salary
The Respondent's unilateral reduction of the Claimant's salary and benefits breached his contract and section 10(5) of the Employment Act
The Claimant's appointment letter of 30th May 2017 expressly retained his basic salary and house allowance at management level until a Full Professor's salary exceeded it. These vested contractual rights arose from negotiation, reinforced by the Council's 12th April 2018 resolution. The 2021 variation was effected without notice, consultation or engagement, violating section 10(5) of the Employment Act, the sanctity of contract, and fair administrative action requirements.
Applicability of government circulars to the reduction
The circulars could not justifiably be applied because one had been quashed by a court order of certiorari before the 2021 variation
The court noted prior decisions including Professor James Tuitoek and Professor Francis Muhiru Njeru, in which certiorari removed and quashed Circular Letter No. OP/SCA.1/12para 11. That decision stood unappealed from 15th October 2018, while the variation occurred in April 2021; hence a quashed circular could not lawfully ground the reduction.
Violation of fair administrative action
The variation decision was made without notifying and hearing the Claimant, violating Article 47 and the Fair Administrative Action Act, rendering it null and void
Section 4 of the Fair Administrative Action Act requires notice and hearing before adverse administrative action. It was undisputed the decision to vary salary was reached without notifying or hearing the Claimant. The court held the action was not expeditious, reasonable, efficient, or lawful, and was therefore null and void.
Alleged discrimination under Article 27
The discrimination claim failed for lack of evidence
The Claimant's only support was a bare assertion that Dr. Esther Gichuru retained her exit package; he tendered no evidence to prove differential treatment. The burden of proving discrimination was not discharged.
Legal principles established
#- An employer has no implied right unilaterally to vary contract terms; variation requires agreement, and section 10(5) of the Employment Act protects employees against misuse of imbalanced bargaining power
- Procedural fairness under Article 47 and section 4 of the Fair Administrative Action Act requires that a person adversely affected by an administrative action be notified and heard before the action is taken
- A successor council cannot declare unlawful the decisions of a predecessor council affecting individuals' rights without first legally challenging those actions or engaging those individuals
- A circular quashed by a court order of certiorari cannot legally be applied after the quashing decision
Court orders
#- 1.A declaration that the Respondent's decision and action of varying the Claimant's salary and allowances was unlawful and unfair
- 2.A declaration that the Claimant was at all material times entitled to earn salary and allowances as set out in his letter of appointment and clarified in the Respondent's letter dated 16th April 2018
- 3.The Respondent to tabulate within 30 days of the Judgment all unpaid salary and house allowances, all annual and monthly professorial allowances effective 20th February 2018, all deductions made on the alleged erroneous CBA payments, and any amounts deducted on account of circulars
- 4.The tabulation to be filed in court and served on the Claimant within 30 days
- 5.Mention on 6th May 2025 for compliance, adoption of the tabulation as the final award, and further orders
- 6.Interest on the sum to be paid at court rates from the date of the decision to vary salary and house allowance until full payment
- 7.Costs of the suit to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment dispute (no specific constitutional provision invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mathooko v Machakos University (Cause E946 of 2021) [2020] KEELRC 1937 (KLR)", Case Analysis (Judg). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1937/eng@2020-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.