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ELRCPartially AllowedMemorandum of Claim dated 3rd May 2018 (ELRC)· [2021] KEELRC 2291 (KLR)

Michael Kinyanjui Mburu v Kenyatta University [2021] KEELRC 2291 (KLR)

Employment and Labour Relations Court
22 January 2021
3,414 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Claimant, an Information Technology Support and Maintenance Officer engaged by Kenyatta University in 2013 on renewable two-year contracts with gratuity, was suspended on half salary on 1st November 2016 over allegations of irregularly altering student records, printing transcripts and concealing MBA enrolment. He sought nullification of the suspension, gratuity, full salaries from May 2017, reinstatement and general relief. By consent before Ongaya J on 7th August 2018, a partial decree directed payment of accrued half salaries and gratuity, which the Respondent paid (Kshs.523,043.88). The court framed three issues: legality of the suspension; automatic renewability of the contract; and entitlement to reinstatement. It found the Respondent failed to discharge the evidentiary burden of showing adequate steps to convene disciplinary proceedings during suspension, rendering the suspension irregular and non-compliant with Clause 7.3 of the applicable CBA. The contract was held renewable only subject to University Council approval, thus not automatic, and had expired during suspension. Reinstatement was refused: it is discretionary, the contract had expired, and the claimant did not meet Section 49(4) Employment Act conditions given the seriousness of the allegations and the contractual nature of his engagement. The court instead awarded three months' salary (Kshs.245,703) as compensation for the irregular suspension, declined payment of salary to date, and made no orders for costs.

Key legal issues

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01

Whether the suspension was lawful under the CBA

Holding

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

Reasoning

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.

p. 4
02

Whether the contract was automatically renewable

Holding

No - the contract was renewable subject to approval of the Kenyatta University Council, hence not automatic

Reasoning

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.

p. 4
03

Whether the claimant was entitled to reinstatement

Holding

No - reinstatement was refused; instead the court awarded three months' salary as compensation for the irregular suspension

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Award of three (3) months' salary as compensation for the irregular suspension in the sum of Kshs.245,703
  2. 2.Decline of reinstatement and of payment of salary to date of payment
  3. 3.No orders for costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 41, 47, 50, 48, 159(2)(d)
  • Employment ActSections 44(4)(c), 49(3)(a), 49(4)
  • Fair Administrative Actions Act No. 4 of 2015Not specified
  • Employment and Labour Relations Court ActSection 12(3)(vii)
  • Evidence ActSections 108, 109
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21)Section 1B
  • CBA for 2013/2017 between Kenyatta University Council and Kenya Universities' Staff Union (KUSU) dated 24th November 2016Sections 6.3, 7.3(a)-(e), 7.20, 11(h)(i)(j)

Cases cited (6)

  • Sotik Highlands Tea Estates Limited v Kenya Plantation and Agricultural Workers Union
    [2017] eKLR
  • Kenya Revenue Authority v James Omondi Were
    [2020] eKLR
  • Rose Aoko Ogwang Odhiambo v National Gender & Equality Commission
    [2018] eKLR
  • Dakianga Distributors (K) Ltd v Kenya Seed Company Limited
    [2015] eKLR
  • Jennifer Nyambura Kamau v Humphrey Mbaka Nandi
    [2013] eKLR
  • Evans Otieno Nyakwana v Cleophas Bwana Ongaro
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act, section 12; Employment Act

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, "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.