Kisaka v University of Nairobi (Petition 7 of 2019) [2023] KEELRC 1795 (KLR)
The bottom line
#A suspended University of Nairobi lecturer won unpaid salary and a promotion backdated to his interview date, but lost defamation and damages claims.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit met the threshold of a constitutional petition
The petition did not meet the Anarita Karimi Njeru threshold and would have been prosecuted more efficiently as an ordinary cause, but the court proceeded to determine the issues raised
The remedies sought were essentially declaratory, damages and release of unpaid monies, none of which directly implicate constitutional provisions, being covered by statute and case law. Other than the inordinate suspension, the allegations lacked particulars of the articles violated and the manner of violation, making it difficult to sustain a constitutional petition.
Whether the lifting of the suspension flowed from the court order of 20th January 2020 or the Respondent's letter of 8th May 2020
The lifting of the suspension was at the instance of the Respondent's letter dated 8th May 2020, not the court direction
The court direction required the Respondent to proceed with the stalled disciplinary process, meaning continuation, not conclusion, within three months. The Respondent acted within the period by inviting the Petitioner to a hearing. The lifting occurred through the Respondent's letter which the Petitioner signed, and absent proof of duress his signature was binding.
Whether the Petitioner was defamed
Defamation was not proved on a balance of probabilities
Neither the petition nor the affidavits particularised the defamatory remarks or identified who called the Petitioner corrupt or a thief. The elements of defamation — publication, reference to the plaintiff and falsity — were not established, so the claim and the damages and retraction prayers failed.
Entitlement to unpaid half salary and commuter allowance during suspension
The Petitioner was entitled to all unpaid dues from the date of suspension until its lifting
The Disciplinary Committee lifted the suspension but denied unpaid wages without any discernible basis; the terms of service and the UASU Collective Agreement (not produced) did not justify the denial. The lengthy suspension was attributable to the Respondent, which took no steps for over three months after suspension.
Whether the change of the effective date of promotion to Senior Lecturer was arbitrary
The change was arbitrary; the effective date should have been the date of the interview (14th March 2018), and the Petitioner is entitled to the shortfall in salary and benefits from that date
The Appointments Committee makes its decision on the interview date, and the Respondent gave inconsistent reasons in successive letters for declining to backdate. It failed to produce minutes or justify why notification took over six months. Having been successful at interview on 14th March 2018 and suspended only in September 2018, the Petitioner was a Senior Lecturer by implication.
Damages for pain and suffering
Declined for failure to prove causation between the suspension and the alleged medical conditions
None of the medical documents identified the Petitioner as the patient or demonstrated a nexus between the wife's indisposition and the suspension. Causation, being a net rather than a chain, had to be proved by the Petitioner, and the preponderance of evidence did not establish the suspension as the proximate cause.
Legal principles established
#- Not every suit raising a constitutional issue should be brought as a constitutional petition where the issue is remediable under an Act of Parliament
- Reinstatement is a terminal remedy under Section 12(3)(vii) ELRC Act and Section 49(3)(a) Employment Act, unavailable prior to dismissal or termination
- A party who has lifted a suspension cannot revisit the employee's transgression to deny unpaid dues for the suspension period
- In a university, the Appointments Committee makes its promotion decision on the date of interview and the effective date of promotion may properly be backdated to the interview date
- An employee's signature on a letter is binding absent cogent or credible evidence of duress
Court orders
#- 1.Unpaid salary and commuter allowance from the date of suspension till its lifting
- 2.Declaration that change of the effective date of promotion to Senior Lectureship was arbitrary and ought to have been the date the decision was made by the Appointments Committee
- 3.Short fall in salary and allowances from the date of suspension till its lifting
- 4.Costs of the suit to the Petitioner
- 5.Interest on the unpaid salary/allowance and shortfall awards from date of judgment till payment in full
- Jurisdiction invoked
- Article 165(3)(b) of the Constitution; Section 12(3) of the Employment and Labour Relations Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kisaka v University of Nairobi (Petition 7 of 2019) [2023] KEELRC 1795 (KLR)", Case Analysis (2023). Petition (filed 14th January, 2019) – number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1795/eng@2023-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.