Malaya v Masinde Muliro University of Science and Technology (Petition 5 of 2023) [2023] KEELRC 3005 (KLR)
The bottom line
#Kenya's Employment Court ruled a university acted unfairly by keeping a librarian in an acting role for seven years, awarding him Kshs. 500,000 compensation.
What this practically means
#Executive summary
#Key legal issues
#Applicability of the PSC Act and the 2015 Public Service HR Manual to a public university's employees
The PSC Act applies to public universities as public bodies; since the respondent had no human resource policy in force when the petitioner was appointed acting in 2015, section 34(3) of the PSC Act and the 2015 Public Service HR Manual applied until the respondent's policy of November 2022.
Section 3 of the PSC Act applies the Act to all public bodies and persons holding office in the public service, and public universities are not among the excluded offices. Section 35 of the Universities Act empowers the Council to employ staff and set terms, but this does not oust the PSC Act's scope. Because no respondent policy document covering the 2015-2022 acting period was availed, the PSC Act's six-month limit on acting appointments and the 2015 HR Manual's 20% acting allowance floor governed.
Whether legitimate expectation of confirmation arose from prolonged acting service
No legitimate expectation crystallized; the change of requirements for the position, the six-month acting letters, and the petitioner's own request for renewal of the acting appointment extinguished any expectation of confirmation.
Legitimate expectation requires a clear, unambiguous representation by the decision-maker. The Registrar's May 12, 2020 letter recommended filling the vacant position, not confirming the petitioner. The 2019 advertisement changing qualifications went unchallenged and reset any expectation. The April 25, 2022 six-month acting letter was accepted without objection, and the petitioner himself sought renewal of the acting appointment in November 2022, showing he knew he was acting.
Whether prolonged acting service without confirmation or promotion violated rights to fair labour practices, remuneration, dignity and non-discrimination
The petitioner's right to fair labour practices and fair remuneration under article 41 was violated by keeping him acting for approximately seven years; however, no discrimination was proved.
The petitioner performed the full duties of University Librarian from November 2015 while receiving his Deputy Librarian salary, for six years and eleven months, beyond the six months permitted by section 34(3) of the PSC Act. Following Silas Kaumbuthu Mbutura as upheld in Susan Khakasa Oyatsi, this amounted to an unfair labour practice warranting constitutional compensation of Kshs. 500,000/-. No evidence showed the petitioner was treated differently from comparable colleagues, so the discrimination claim failed.
Lawfulness of the respondent's November 2022 recruitment process
The recruitment process was lawful; competitive external advertisement of the Grade XV post was consistent with article 10(2) national values and section 34(5) of the PSC Act.
The position was vacant after the petitioner's acting contract expired on October 31, 2022. Clause 2.14.3 of the respondent's HR Manual required external, open, competitive, merit-based advertisement for Grade 15 and above. Section 34(5) of the PSC Act provides that an acting appointment does not undermine expeditious appointment of a competent person. The petitioner himself applied for the advertised position and raised no timely objection to the changed requirements.
Entitlement to acting allowance and underpayment damages
The petitioner was paid acting allowance at 15% instead of the 20% minimum under the Public Service HR Manual; he was awarded the 5% balance for December 2015 to December 2020.
The Public Service HR Manual sets minimum norms; a public body's own policy may improve on but not fall below them. The respondent's letter of January 2021 admitted payment at 15% from November 2015 to November 2020 despite domesticating the 20% manual. Responsibility allowance was accepted as synonymous with acting allowance, so the only deficiency was the 5% differential over the period December 2015 to December 2020, to be tabulated by the parties within 21 days.
Legal principles established
#- Public universities are public bodies within the scope of the Public Service Commission Act, which is not displaced by the Universities Act's conferral of staffing powers on University Councils.
- A public body's human resource policy cannot provide benefits below the minimum standards in the Public Service HR Manual; the acting allowance floor is 20% of substantive basic salary.
- Where no human resource policy of the employer covered the period of appointment, section 34(3) of the PSC Act limiting acting appointments to six months applies.
- Holding an employee in an acting capacity for years while paying the lower substantive salary is an unfair labour practice under article 41 of the Constitution, following Silas Kaumbuthu Mbutura and Susan Khakasa Oyatsi.
- An acting appointment does not curtail the employer's expeditious recruitment of a competent substantive holder under section 34(5) of the PSC Act.
Court orders
#- 1.A declaration that keeping the petitioner in an acting capacity as the respondent's University Librarian for 7 years violated the petitioner's right to fair labour practice under article 41 of the Constitution
- 2.Compensation of Kshs. 500,000/- for the unfair labour practice
- 3.Award of the balance of 5% acting allowance for the period December 2015 to December 2020, with parties to file concurrent tabulations within 21 days for recording at mention on January 23, 2024
- 4.Payments to be effected by the respondent within 90 days, in default interest at court rates from the date of judgment till full payment
- 5.Respondent to pay costs of the petition to the petitioner
- Jurisdiction invoked
- Article 41 of the Constitution of Kenya, 2010 (fair labour practices) - Employment and Labour Relations Court original jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Malaya v Masinde Muliro University of Science and Technology (Petition 5 of 2023) [2023] KEELRC 3005 (KLR)", Case Analysis (2023). Petition dated December 28, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3005/eng@2023-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.