Paul Kiprop Chepkuto v University Council, Moi University & 3 others [2022] KEELRC 261 (KLR)
The bottom line
#The court dismissed an academic's multi-million-shilling unfair dismissal claim because he filed two lawsuits over the same dispute without disclosing the first case.
What this practically means
#Executive summary
#Key legal issues
#Abuse of court process by filing parallel proceedings
The Claimant's filing of this Cause while Nakuru Cause No. 443 of 2016 on the same subject matter was pending, without disclosure, was a fundamental material non-disclosure and abuse of process meriting dismissal
The Claimant filed Nakuru Cause No. 443 of 2016 challenging his suspension, then filed this Cause in April 2017 challenging the same actions, pleaded that no suits were pending, and only withdrew the Nakuru Cause in March 2021. Failure to disclose pendency of a cause on substantially the same subject matter offended section 6 of the Civil Procedure Act and constituted abuse warranting dismissal.
Joinder of Council, Chair of Council and Vice-Chancellor
The Council is an employer under section 2 of the Employment Act and capable of being sued; the Chair and Vice-Chancellor were necessary parties as particulars of wrongdoing were pleaded against them
The Council recruits staff under section 34 of the Universities Act and is an agent of the University; under the Employment Act definition of employer, an agent is included. Article 260's definition of 'person' supports its capacity to be sued. A claim cannot fail merely because of the joinder of a party.
Lawfulness of suspension and show-cause notice
The suspension was not unlawful; a show-cause notice has antecedents in section 35(1) of the Employment Act and suspension had a contractual/policy foundation
Suspension is routinely used to enable investigations, and the letters filed suggested suspension of staff was part of the university's terms and conditions of service in its procedures and policies manual.
Limitation
The Court declined to revisit limitation since it had already allowed the amendments in a ruling on 4 November 2020; the Respondents' remedy was appeal
The memorandum of claim filed in April 2017 already contained allegations of termination of employment. The application to amend was served and the objection to limitation raised; the Court allowed the amendments by a short ruling. The issue could not be re-litigated in submissions.
Procedural fairness of termination of the lecturership contract
Procedurally unfair - the Claimant had separate contracts and was never afforded an opportunity to make representations on the termination of the lecturership contract
The letter of 24 February 2017 dismissed the Claimant from university services entirely, yet his permanent and pensionable contract as lecturer was never put at risk or made subject of representations. A subsequent letter of 22 March 2017 confirmed dismissal from university services.
Procedural fairness of termination as Deputy Vice-Chancellor
Procedurally unfair - the Respondents failed to process the appeal within the 21-day timelines set in the terms and conditions of service
The appeal was lodged on 15 March 2017 and decided on 16 March 2017, after the 21 days prescribed in the Human Resource Manual had lapsed. The Respondents' explanation that the appeal could not be processed because the Claimant moved to Court before the lapse of 21 days was without merit.
Validity and fairness of reasons for termination
The Respondents failed to discharge the burden under sections 43 and 45 of the Employment Act; the termination was not for valid and fair reasons
The Respondents' witnesses had no direct involvement in the allegations; the auditor and audit team were not called and the audit report was not produced. The Claimant's explanations, supported by documents showing Vice-Chancellor approval and Board decisions, appeared plausible.
Quantum (compensation, notice pay, gratuity, leave allowance, lost income)
The Court indicated it would have awarded 10 months' gross salary compensation, 3 months' basic salary in lieu of notice, pro-rata gratuity at 30% of basic salary and the leave allowance claim, but rejected claims for lost future income
The Claimant had served about 27 years and was a professional who had moved on. Gratuity accrued per clause 3A of the contract. Lost income claims had no contractual or legal foundation and were speculative, per Bank of Uganda v Tinkamanyire.
Legal principles established
#- Filing a new suit during the pendency of a similar suit, without disclosure, is an abuse of the process of the court and warrants dismissal even if the first suit is later withdrawn
- The Council of a public university is an employer for purposes of section 2 of the Employment Act, 2007 and is capable of being sued
- An employer bears the burden of proving valid and fair reasons for termination under sections 43 and 45 of the Employment Act, and witnesses with direct involvement in the allegations (such as the audit team) should be called
- Compensating a prematurely terminated employee for the remainder of the contract or to retirement age is unattainable in law
Court orders
#- 1.The Cause is dismissed for being an abuse of the court process
- 2.The Respondents to have costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and the Constitution over employment and labour relations disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paul Kiprop Chepkuto v University Council, Moi University & 3 others [2022] KEELRC 261 (KLR)", Case Analysis (2022). Employment Cause (filed 4 April 2017, Eldoret; heard before the ELRC, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/261/eng@2022-04-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.