Kituku v Council of Legal Education & another (Employment and Labour Relations Petition E209 of 2022) [2023] KEELRC 1357 (KLR)
The bottom line
#Kenya's Employment Court dismissed a CEO's constitutional challenge to his termination, ruling employment disputes belong under the Employment Act, while declaring his lecturing side job a conflict of interest.
What this practically means
#Executive summary
#Key legal issues
#Constitutional avoidance
The doctrine applies; the petitioner's grievances were employment disputes that should have been brought as an ordinary claim under the Employment Act, so the petition fails
The court held that constitutional litigation is narrow and reserved for exceptional situations. The petitioner's complaints about procedural and substantive fairness of termination and non-confirmation were fully covered by the Employment Act and the ELRC's statutory procedure. Merely alleging rights violations is insufficient to invoke constitutional jurisdiction, so the petition was improperly presented.
Discrimination contrary to Article 27
Not proved; the appraisal formula change was discussed and agreed with the petitioner, and the probation clause, though inconsistent with the HR Manual, was accepted by conduct
The petitioner's grievance was not based on any constitutionally prohibited ground. The change of the appraisal weighting was agreed with him before evaluation. As to the probation clause conflicting with the HR Manual, the court found he never protested at the outset and continued working, implying agreement; a court cannot rewrite contracts for parties.
Fairness of termination during probation
Termination was both procedurally and substantively fair; the employer had an appraisal system, accorded hearings, and the reasons (unsatisfactory performance and conflict of interest) were valid and would cause a reasonable employer not to confirm
The court affirmed that probationers enjoy statutory protections. Section 43 burden was discharged as the reasons were uncontested. On validity, the employer had an appraisal tool, committee, feedback meetings, gave opportunity to improve, and shared reasons. The test is whether a reasonable employer would have acted likewise; here one would.
Conflict of interest (cross-petition)
The petitioner, by continuing to lecture at the University of Nairobi after becoming CEO, was afflicted by apparent and potential conflict of interest in breach of Articles 10, 73, 232 and the Leadership and Integrity Act; the contract was not, however, a nullity ab initio
The University of Nairobi School of Law fell under CLE's licensing and supervisory mandate. Even if implied repeal applied, CLE could still be consulted or delegated supervisory functions under the Universities Act. Requiring resignation before applying for a job would be absurd, so the contract was not void ab initio, but the wilful continuance of lecturing breached integrity and public service values.
Locus standi of the 2nd Respondent
The 2nd Respondent had standing under the liberalised post-2010 approach and the court's consent order admitting him
The 2010 Constitution unshackled constitutional litigation from strict locus standi requirements, and the consent order onboarding the 2nd Respondent had not been set aside; the objection was unfounded.
Legal principles established
#- Where a dispute can be resolved under statute, the constitutional litigation path should not be used; a mere allegation of rights violation does not attract constitutional jurisdiction
- An employee under probation enjoys the full protections against unfair termination under the post-2008 employment regime, including sections 41, 43, 45 and 47(5) of the Employment Act
- The burden of proving discrimination lies on the person alleging it, and it must be anchored on a ground prohibited by Article 27(4) or an analogous arbitrary ground
- Conflict of interest may be real, apparent or potential; a public officer who continues serving a regulated entity while regulating it breaches Articles 10, 73 and 232 and the Leadership and Integrity Act
Court orders
#- 1.The Petitioner's Petition is dismissed for lack of merit
- 2.A declaration that the Petitioner's wilful continuance of offering services as a lecturer at the University of Nairobi, School of Law, after securing employment as the 1st Respondent's CEO placed him in a situation of conflict of interest and in violation of Articles 10(2)(c), 73 and 232(a)(b) and (c) of the Constitution and the Leadership and Integrity Act 2012
- 3.Each Party shall bear its own costs
- Jurisdiction invoked
- Articles 27, 41 and 47 of the Constitution as invoked in the petition; Article 22 and 258 invoked for the cross-petition; Employment Act 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mutuku & 2 others v Registrar of Trade Union & 2 others (Petition E018 of 2024) [2025] KEELRC 278 (KLR)[2025] KEELRC 278 (KLR)6 Feb 2025applied
Cite this brief
#Cite this brief
Caselaw, "Kituku v Council of Legal Education & another (Employment and Labour Relations Petition E209 of 2022) [2023] KEELRC 1357 (KLR)", Case Analysis (2023). Petition dated 5th December 2022 (Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1357/eng@2023-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.