Wainana v Head of Public Service & 3 others (Petition E129 of 2022) [2022] KEELRC 1437 (KLR)
The bottom line
#Kenya's Employment Court ruled that Kenyatta University's Council could lawfully suspend its Vice-Chancellor for a fixed period to investigate him, and refused to block his replacement.
What this practically means
#Executive summary
#Key legal issues
#Sub-judice
The issues in Petition E123 of 2022 (Faith Ngugi & 2 others v Attorney General) and the instant application are directly and substantially similar, but the court declined to stay or strike out the suit, instead directing the Petitioner to consider consolidation or withdrawal.
Section 6 of the Civil Procedure Act is mandatory; two suits with substantially similar issues existed, the earlier being E123 of 2022. However, striking out or a stay would be draconian and would not augur well with enforcement of the Petitioner's constitutional rights, so the court left the choice of consolidation or withdrawal to the Petitioner.
Constitutional avoidance
The doctrine did not bar the petition, but on the facts the court found no disciplinary proceedings had commenced, only an administrative suspension and investigation, which the employer was entitled to undertake.
The court recited the doctrine from Communications Commission v Royal Media Services and its exceptions, then examined the evidence: the 12th July 2022 letter suspended the Petitioner for 30 days for investigations, and the 19th July 2022 letter merely invited him to meet the Ad Hoc Committee. The suspension was administrative, not punitive, and no termination decision had been made.
Interim injunctive/conservatory orders
The application failed the Giella v Cassman Brown threshold: no prima facie case beyond arguable, no irreparable injury, and public interest favoured the respondent public institution.
The Petitioner had an arguable case only; irreparable injury was not demonstrated since he retains the right to challenge any eventual decision; and the 26th July 2022 order had reversed actions taken on 12th July 2022 to the detriment of Kenyatta University as a public institution, so public interest prevailed.
Legal principles established
#- An employer-council of a public university is vested with power to administratively suspend and investigate an employee including the Vice-Chancellor, provided the suspension is for a definite period and processes are undertaken with reasonable dispatch.
- The natural consequence of the sub-judice rule is stay of the later suit until the earlier one is determined.
Court orders
#- 1.The Notice of Motion Application dated 21st July 2022 is unmerited and is dismissed.
- 2.Each party to bear their own costs.
- Jurisdiction invoked
- Article 162(2) of the Constitution, Article 165(5)(b) and section 12 of the Employment and Labour Relations Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wainana v Head of Public Service & 3 others (Petition E129 of 2022) [2022] KEELRC 1437 (KLR)", Case Analysis (2022). Petition (Notice of Motion dated 21st July 2022), Employment and Labour Relations Court, Nairobi. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1437/eng@2022-08-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.