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ELRCDismissedApplication dated 25th January, 2021 in a Cause before the Employment and Labour Relations Court (referenced against Nakuru ELRC Pet. E003 of 2020)· [2021] KEELRC 1781 (KLR)

Thomas Ekamais Akuja v Turkana University College Council [2021] KEELRC 1781 (KLR)

Employment and Labour Relations Court
29 April 2021
5,157 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to reinstate a dismissed university Principal, ruling that money compensation—not getting the job back—is the usual remedy for unfair dismissal.

What this practically means

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Executive summary

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The claimant, formerly Principal of Turkana University College, moved the court by application dated 25th January 2021 seeking to restrain the respondent from recruiting and substantively filling the position of Principal and seeking interim reinstatement without loss of benefits, seniority and emoluments, pending hearing of his claim challenging summary dismissal by letter dated 14th January 2021. He contended the disciplinary process was a nullity for exceeding the six-month period prescribed by the Human Resource Manual and section 63 of the Universities Act, that he was denied requested documents, and that the dismissal was malicious and unfair. The respondent, through a replying affidavit of its Chairperson Dr. S.J Muchina Munyua, opposed the application, arguing the process was fair, delays were occasioned by the expiry of the former council and Covid-19 protocols, the claimant squandered chances to be heard, the application was res judicata, and that damages would suffice. The court found that although the disciplinary process exhibited flaws - lasting eleven months instead of six and non-supply of requested documents - these did not justify interim reinstatement, since reinstatement is not the only remedy for wrongful dismissal and monetary compensation would be available if the claimant ultimately proved unfair termination. The court also declined to bar recruitment, holding a learning institution cannot be held at ransom, and noted the claimant failed to demonstrate malice. The application was dismissed with costs in the case, delivered virtually on 29th April 2021 by Wasilwa, J.

Key legal issues

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01

Whether the applicant established a prima facie case

Holding

Although flaws in the disciplinary process were evident, they did not justify interim reinstatement

Reasoning

The court accepted that the disciplinary process lasted eleven months instead of the six months prescribed and that some requested documents were not supplied, showing flaws. However, a flawed process alone does not entitle the applicant to interim reinstatement because reinstatement is not the sole remedy for wrongful dismissal and compensation is available.

p. 6
02

Whether interim reinstatement should issue

Holding

Refused; the applicant can be compensated in any other way including monetarily if termination is ultimately found unfair

Reasoning

The court held that reinstatement is not the only remedy for wrongful dismissal and that monetary compensation is available if the claimant ultimately proves his case. The claimant did not demonstrate malice in his termination, and interim reinstatement was not warranted on the material placed before the court.

p. 6
03

Whether the recruitment of a substantive Principal should be restrained

Holding

The alternative prayer was not tenable; a learning institution cannot be held at ransom from recruiting

Reasoning

The court weighed the public interest in uninterrupted services at a learning institution with approximately 700 students against the claimant's private interest. It found that if the claimant's case is ultimately proved, monetary compensation would suffice, so barring recruitment was not tenable.

p. 6
04

Whether the claimant demonstrated malice in his termination

Holding

The claimant did not demonstrate why he thought there was malice in the termination

Reasoning

The claimant alleged that the dismissal was actuated by ill motive and malice, but the court found he adduced no basis for that assertion. The allegation therefore carried no weight in the assessment of the interim reliefs sought.

p. 6

Legal principles established

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  • Reinstatement is not the only remedy in a case of wrongful dismissal; an employee whose termination is found unfair can be compensated in monetary terms
  • An interlocutory court will not restrain recruitment to a substantive position in a public learning institution merely because a former occupant challenges his dismissal, as damages would be an adequate remedy
  • Failures in a disciplinary process, such as exceeding the prescribed duration and non-supply of requested documents, amount to flaws in the process

Court orders

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  1. 1.Application dated 25th January 2021 dismissed - no orders of interim reinstatement issued
  2. 2.Prayer to bar the respondent from filling the vacancy occupied by the applicant declined
  3. 3.Costs in the case awarded

Authorities

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Legislation

  • Employment Actsections 41, 44, 45, 49(1), 49(3)
  • Universities Act No. 42 of 2012section 63
  • Employment and Labour Relations Court Actsection 12(3)(vii)
  • Constitution of Kenya, 2010not specified
  • Fair Administration of Actions Actsection 9
  • Turkana University College Order, 2017section 16
  • Turkana University College Human Resource ManualSection D5.22(c); section E 2.11

Cases cited (12)

  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    [2003] eKLR
  • Amir Suleiman v Amboseli Resort Limited
    [2004] eKLR
  • Anne Wambui Kamuiru v Kenya Airways Limited
    [2016] eKLR
  • Ahmed Aden Hire v Natif Jam and County Government of Garissa
    [2016] eKLR
  • Alfred Nyungu Kimungui v Bomas of Kenya
    [2013] eKLR
  • Walter Kiplagat Serem v Turkana University College Council
    [2020] eKLR
  • Hedwig Nyalwal v Kenya Institute of Supplies Management
    [2020] eKLR
  • Giella v Cassman Brown Ltd
    (1973) EA 358
  • Rose Sang v Siginon Group Limited
    [2020] eKLR
  • Kenya Airways Limited v Aviation Workers' Union Kenya & 3 others
    [2014] eKLR
  • Kenya Shipping Clearing Freight Logistics and Warehouse Workers Union v May Freight Ltd
    [2020] eKLR
  • Kenya Tea Growers Association & another v Kenya Plantation & Agricultural Workers Union
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act, section 12; Employment Act, 2007

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, "Thomas Ekamais Akuja v Turkana University College Council [2021] KEELRC 1781 (KLR)", Case Analysis (2021). Application dated 25th January, 2021 in a Cause before the Employment and Labour Relations Court (referenced against Nakuru ELRC Pet. E003 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1781/eng@2021-04-29

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