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ELRCDismissedCause No E481 of 2023· [2023] KEELRC 2418 (KLR)

Waweru v Kenyatta University (Cause E481 of 2023) [2023] KEELRC 2418 (KLR)

Employment and Labour Relations Court
6 October 2023
SRStella Rutto
3,087 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to reinstate a suspended doctor mid-disciplinary process, but warned the employer must follow fair procedures.

What this practically means

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Executive summary

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Dr. Gete Waweru, a medical practitioner, was suspended by his employer (the Respondent) by letter dated 19th May 2023 pending investigations into alleged absenteeism on 14th, 15th and 21st March 2023, and was placed on half salary. He moved the Employment and Labour Relations Court by Notice of Motion dated 13th June 2023 under Order 40 of the Civil Procedure Rules, section 25 of the Employment Act and section 3A of the Civil Procedure Act, seeking unconditional lifting of the suspension, immediate reinstatement with full pay, and injunctions restraining the Respondent from suspending, interdicting, dismissing or terminating his employment pending hearing of the suit. The Respondent opposed through Grounds of Opposition, contending the application was premature as disciplinary proceedings were pending before its Senior Disciplinary Board, and that the interlocutory orders sought were final in nature. The court framed a single issue: whether the application was merited. Applying Giella v Cassman Brown, Justice Stella Rutto found the Applicant had established an arguable prima facie case, supported by electronic attendance register extracts showing he reported to work on the alleged dates. However, the court held he would not suffer irreparable injury because the disciplinary process was ongoing and might absolve him, with withheld salary refundable if he were cleared, and because reinstatement is a final remedy. Adopting Rebecca Ann Maina and Booysen, the court declined to interfere with the employer's managerial prerogative, reserving intervention for exceptional cases, while directing strict compliance with statutory procedural fairness. The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether the Applicant established a prima facie case warranting lifting of his suspension and reinstatement

Holding

Yes - the Applicant proved an arguable prima facie case

Reasoning

The Applicant exhibited extracts of the Electronic Attendance and Patients Treatment Register showing he was at work on the alleged dates of absence. His Terms of Service and the CBA were not exhibited, raising questions to be resolved at trial. At interlocutory stage the evidence cannot be examined microscopically; applying the Mrao definition, an apparently infringed right was shown.

p. 5
02

Whether the Applicant would suffer irreparable injury if the orders are not granted

Holding

No - he would not suffer irreparable injury

Reasoning

The disciplinary process is ongoing and may absolve the Applicant, in which case withheld salary would be released. Any loss is measurable and compensable. Reinstatement is a final remedy that should await full hearing. The disciplinary process should proceed but with strict adherence to procedural fairness safeguards under the Employment Act.

p. 6
03

Whether the Court should interdict the employer's disciplinary process

Holding

No - intervention is only warranted in exceptional cases

Reasoning

Following Rebecca Ann Maina and Booysen, the Court should not assume the employer's managerial prerogative. An employee who shows a disciplinary process is irregular or stage-managed may have the court 'put things right' but not stop the process altogether. The Respondent is directed to conduct the disciplinary process in strict compliance with statutory procedural fairness safeguards.

p. 6

Legal principles established

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  • Establishing a prima facie case alone is not sufficient to grant an interlocutory injunction; the applicant must also show irreparable injury not compensable by damages
  • Reinstatement is in the nature of a final order and should only issue after final hearing and determination
  • Courts should not take over the employer's managerial prerogative at the workplace; intervention to halt a disciplinary process is limited to exceptional cases, though the process must comply with statutory procedural fairness

Court orders

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  1. 1.The orders sought in the Application dated June 13, 2023 are declined
  2. 2.The Application is dismissed with no orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 40; Order 21 Rule 1
  • Employment Actsection 25; section 44(4)(a)
  • Civil Procedure Actsection 3A; section 1B
  • Constitution of KenyaArticle 47; Article 159(2)(d); Article 48

Cases cited (9)

  • Kennedy Otieno Odiyo & 12 Others v Kenya Electricity Generating Company Limited
    [2010] eKLR
  • Kenya Plantation and Agricultural Workers Union v Finlays Horticulture Limited
    [2015] eKLR
  • Luka Korir v Moi Teaching and Referral Hospital
    [2022] eKLR
  • Charles Muturi Mwangi v Invesco Assurance Co. Ltd
    [2019] eKLR
  • Giella v Cassman Brown
    [1973] EA 358
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    [2003] eKLR
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • Rebecca Ann Maina & 2 others v Jomo Kenyatta University of Agriculture and Technology
    [2014] eKLR
  • Booysen v The Minister of Safety and Security & Or
    [2011] 1 BLLR 83 (LAC)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction invoked under section 3A of the Civil Procedure Act, Order 40 of the Civil Procedure Rules and section 25 of the Employment Act

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, "Waweru v Kenyatta University (Cause E481 of 2023) [2023] KEELRC 2418 (KLR)", Case Analysis (2023). Cause No E481 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2418/eng@2023-10-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.