Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in the judgment· [2021] KEELRC 1004 (KLR)

Fredrick Nyongesa Kassilly v Turkana Univeristy College & 2 others [2021] KEELRC 1004 (KLR)

Employment and Labour Relations Court
21 September 2021
HWHellen Wasilwa
3,477 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

#

A Kenyan court froze recruitment for a university deputy principal post, finding the professor's dismissal likely skipped required procedures, though he was not reinstated yet.

What this practically means

#

Executive summary

#
This ruling by the Employment and Labour Relations Court (Hellen Wasilwa, J) determines the Claimant's Notice of Motion dated 23rd March 2021 seeking interim reliefs following his summary dismissal as Deputy Principal, Academic and Student Affairs of Turkana University College. The Claimant, appointed on a five-year contract in 2018, was issued a Notice to Show Cause in September 2020, subjected to a disciplinary hearing in October 2020, and dismissed with effect from the letter dated 6th January 2021. He contended the disciplinary process violated the institution's Human Resource Manual: the NTSC was issued by the 3rd Respondent (Council Chairperson) instead of the Registrar (Administration) as required by clause D.5.2.3(b); no preliminary investigations were conducted under clause D.5.2.3(a); and his dismissal was effected by the Council without recommendation to the Cabinet Secretary as his appointment letter required. He also alleged the charges related to a period when he was not principal and were instigated by a colleague whose payment he had declined to approve. The Respondents maintained due process was followed, the 3rd Respondent was statutorily empowered to communicate with officers above Grade 14, and the suit was premature for failure to exhaust internal review mechanisms. The court found apparent flaws in the disciplinary process, held the claimant could only be terminated after recommendation to the Cabinet Secretary, and granted injunctions restraining recruitment to the claimant's position pending hearing of the application inter-partes and of the case, plus an order compelling supply of minutes. Reinstatement at the interlocutory stage was refused, as it would dispose of the entire claim. Costs were awarded in the cause. The main suit proceeds to full hearing.

Key legal issues

#
01

Whether the disciplinary process complied with the Human Resource Manual

Holding

A cursory view of the complaints shows there may have been breach of procedures envisaged before dismissing the claimant

Reasoning

The claimant demonstrated that the Notice to Show Cause was issued by the 3rd Respondent contrary to clause D.5.2.3(b) of the HR Manual which vests that power in the Registrar (Administration), and that no preliminary investigation under clause 5.2.3(a) was carried out. The court found apparent procedural flaws sufficient to support injunctive relief.

p. 5
02

Whether the claimant could be dismissed without recourse to the Cabinet Secretary

Holding

The appointment letter required the Council to recommend termination to the Cabinet Secretary, which was not done

Reasoning

The letter of appointment expressly provided that the Council may recommend to the Cabinet Secretary in charge of University Education to terminate the appointment. The dismissal letter dated 6.1.2021 was written by the Chairman of Council without recourse to the Cabinet Secretary, rendering the termination procedurally flawed.

p. 5
03

Whether reinstatement could be ordered at the interlocutory stage

Holding

Reinstatement was refused at this stage

Reasoning

The court held that ordering reinstatement at the interlocutory stage would effectively dispose of the entire claim before it could be heard on its merits, and declined to grant that mandatory relief pending the full hearing.

p. 5

Legal principles established

#
  • An interlocutory injunction requires establishment of a prima facie case with a likelihood of success
  • A mandatory reinstatement order should not be granted at an interlocutory stage where it would dispose of the entire claim

Court orders

#
  1. 1.Certification of the application as urgent and its hearing ex-parte in the first instance
  2. 2.An order of injunction restraining the Respondents, their servants or agents from advertising, interviewing, recruiting, filling or appointing any person to the position of Deputy Principal, Academic and Student Affairs pending the hearing and determination of this application inter-partes
  3. 3.An order that the 2nd and 3rd Respondents furnish the Petitioner with the Council Minutes of 17th June 2020 and Minutes of the Disciplinary Hearing of 21st October 2020 pending the hearing and determination of this application inter-partes
  4. 4.An order of injunction restraining the 1st, 2nd and 3rd Respondents, their servants, employees and/or agents from advertising, interviewing, recruiting, filling or appointing anyone to the position of Deputy Principal, Academic and Students Affairs pending hearing and determination of this case
  5. 5.Costs in the cause

Authorities

#

Legislation

  • Constitution of Kenya 2010Article 23
  • Constitution of Kenya 2010Article 35
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 17(1)(2) & (3)
  • Employment ActSection 49(3)
  • Universities ActNot specified
  • Turkana University College Order, 2017Section 16
  • Interpretation and General Provisions ActSection 51
  • Access to Information ActNot specified
  • Turkana University College Human Resource ManualClauses D.5.2.3(b), D.5.2.3(a), D.5.3, D.7.7.1
  • Turkana University College Statute XXVIINot specified

Cases cited (5)

  • Giella –v- Cassman Brown & Co ltd
    (1973) EA 359
  • Hamisi Bweni Dzila –v- County Assembly of Kwale and another
    [2020] eklr
  • Dominick Obel Odongo & Another –v- County Director of Education, Siaya County and another
    [2019] eklr
  • Christopher Mogambi Omonyana & Another –v- Attorney General and another
    [2015] eklr
  • Kenya Airways Limited –v- Aviation workers Union Kenya & 3 others
    [2014] eklr
Jurisdiction invoked
Article 23 of the Constitution of Kenya 2010 and Rule 17(1)(2) & (3) of the Employment and Labour Relations Court (Procedure) Rules 2016

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Fredrick Nyongesa Kassilly v Turkana Univeristy College & 2 others [2021] KEELRC 1004 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1004/eng@2021-09-21

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