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ELRCDismissedPetition (Notice of Motion dated 21st July 2022), Employment and Labour Relations Court, Nairobi· [2022] KEELRC 1437 (KLR)

Wainana v Head of Public Service & 3 others (Petition E129 of 2022) [2022] KEELRC 1437 (KLR)

Employment and Labour Relations Court
4 August 2022
8,158 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling by Gakeri J of the Employment and Labour Relations Court at Nairobi, delivered on 4th August 2022, determined a Notice of Motion dated 21st July 2022 by Professor Paul K. Wainaina, suspended Vice-Chancellor of Kenyatta University, seeking conservatory orders to maintain interim orders issued on 26th July 2022 that had suspended the decision in the Council's letter of 12th July 2022 suspending him and appointing Professor Waceke Wanjohi as Acting Vice-Chancellor. The Petitioner argued the suspension flowed from his refusal to surrender the university's title deed following directives from the Head of Public Service and was unconstitutional and predetermined. The respondents opposed, contending lack of jurisdiction, sub-judice given Petition E123 of 2022 (Faith Ngugi & 2 others v Attorney General), prematurity under constitutional avoidance, and that the Council alone has statutory disciplinary powers under the Universities Act. The court found the two petitions directly and substantially similar but declined to strike out or stay, instead urging consolidation or withdrawal. It held the Council has power to suspend and investigate, the suspension was administrative rather than punitive, and no disciplinary proceedings or termination decision had been made. Applying Giella v Cassman Brown, it found no prima facie case, no irreparable injury, and that public interest in the smooth running of a public university prevailed. The application was dismissed with each party bearing their own costs.

Key legal issues

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01

Sub-judice

Holding

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.

Reasoning

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.

p. 11
02

Constitutional avoidance

Holding

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.

Reasoning

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.

p. 14
03

Interim injunctive/conservatory orders

Holding

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.

Reasoning

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.

p. 16

Legal principles established

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  • 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

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  1. 1.The Notice of Motion Application dated 21st July 2022 is unmerited and is dismissed.
  2. 2.Each party to bear their own costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 23, 41, 47, 60, 159, 162(2), 165(5)(b)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 4, 13, 19, 23
  • Civil Procedure Rules, 2010Order 51; Order 21 Rule 1
  • Civil Procedure ActSection 6; Section 1B
  • Employment and Labour Relations Court ActSection 12(1)
  • Universities Act No. 42 of 2012Sections 35, 37
  • Public Service Commission ActSection 69
  • Fair Administrative Action Act(referred to generally)

Cases cited (21)

  • Okiya Omtatah Okoiti vs Kenyatta University Council & 4 Others
    Nairobi ELRC Petition No 89 of 2015
  • Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others
    Pet. 14A, 14B & 14C of 2014 [2014] eKLR
  • Rebecca Ann Maina & 2 others v Jomo Kenyatta University of Agriculture and Technology
    (2014) eKLR
  • Giella vs Cassman Brown & Co. Ltd
    (1973) EA 358
  • Gitaura Peter Munya v Dickson Mwenda Kithinji & 2 others
  • Kenyatta University & another v Fred Obare
    (2017) eKLR
  • Faith Ngugi & 2 others vs Attorney General
    ELRC Petition No. E123 of 2022
  • Josephat K Mwatela vs Technical University of Mombasa Council and 2 others
    ELRC 352 of 2016
  • Kenya National Commission on Human Rights v Attorney General & Independent Electoral and Boundaries Commission & 16 others
    (2020)
  • Republic v Paul Kihara Kariuki, Attorney General and 2 others Ex parte Law Society of Kenya
    (2020) eKLR
  • Josphat Koli Nanok & another v Ethics and Anti-Corruption Commission
    (2018) eKLR
  • William Odhiambo Ramogi & 3 others v Attorney General & 4 others
    (2020) eKLR
  • Mofiat Kamau & 9 others v Aelous (K) Ltd and 9 others
  • Cabiakman v Industrial Alliance Life Insurance
    (2004) 3 S.CR SCCSS
  • Donald C. Avude v Kenya Forest Service
    (2015) eKLR
  • Nguruman Ltd v Jan Bunde Nielsen and 2 others
    (2014) eKLR
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    (2003) KLR
  • David Ndii and others v Attorney General and others
    (2021) eKLR
  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    (2018) eKLR
  • Office of the Director of Public Prosecutions v Senator James Aggrey Bob Orengo
  • Daniel Ogwoka Manduku & 3 others
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

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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, "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.