Michael Kinyanjui Mburu v Kenyatta University [2021] KEELRC 2291 (KLR)
The bottom line
#A Kenyan court ruled Kenyatta University's prolonged suspension of an employee without a disciplinary hearing was irregular, awarding him three months' salary.
What this practically means
#Executive summary
#Key legal issues
#Whether the suspension was lawful under the CBA
The suspension was irregular: the Respondent failed to prove it took adequate steps to convene disciplinary proceedings within the CBA timelines and did not produce documents showing the claimant was invited to a hearing
Clause 7.3 of the CBA permitted suspension with half pay for 90 days, extendable to six months for complex investigations communicated in writing, after which the employee was to be reinstated with full salary. The Respondent relied only on a letter of 8th March 2018, nearly a year and four months after suspension, and produced no invitation documents. It therefore failed to discharge the evidentiary burden of showing adequate steps during the suspension.
Whether the contract was automatically renewable
No - the contract was renewable subject to approval of the Kenyatta University Council, hence not automatic
The court perused the contract dated 21st May 2016 taking effect 27th May 2015 and found renewal was conditional on Council approval. The contract expired while the claimant was on suspension. Although the delay was not the claimant's fault, this was remedied by the consent partial decree paying withheld half salaries and gratuity.
Whether the claimant was entitled to reinstatement
No - reinstatement was refused; instead the court awarded three months' salary as compensation for the irregular suspension
Reinstatement is discretionary. Given the seriousness of the allegations against the claimant and the contractual nature of his engagement, he did not meet the Section 49(4) Employment Act conditions, which apply only to unfair termination and in exceptional cases. The court instead exercised its discretion to compensate him in the interest of justice for the suspension that breached the CBA.
Legal principles established
#- The remedy of reinstatement is discretionary and depends on the facts and circumstances of each case
- A party who alleges a fact bears the evidentiary burden of proving it; the burden lies on the person who would fail if no evidence were given
- Reinstatement under Section 49(4) of the Employment Act applies only where an employee has been unfairly terminated and in exceptional cases
Court orders
#- 1.Award of three (3) months' salary as compensation for the irregular suspension in the sum of Kshs.245,703
- 2.Decline of reinstatement and of payment of salary to date of payment
- 3.No orders for costs
- Jurisdiction invoked
- Employment and Labour Relations Court Act, section 12; Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Kinyanjui Mburu v Kenyatta University [2021] KEELRC 2291 (KLR)", Case Analysis (2021). Memorandum of Claim dated 3rd May 2018 (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2291/eng@2021-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.