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ELRCDismissedPetition (filed 22nd July 2020; Amended Petition filed 17th March 2021)· [2024] KEELRC 895 (KLR)

Marwa v Dedan Kimathi University of Technology & 2 others (Petition 113 of 2020) [2024] KEELRC 895 (KLR)

Employment and Labour Relations Court
12 April 2024
MOMAUREEN ONYANGO
5,204 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld Karatina University's firing of a professor because the university followed its own fair disciplinary procedures.

What this practically means

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Executive summary

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Prof. Muita Marwa petitioned the Employment and Labour Relations Court against Karatina University, its Vice Chancellor and Council, challenging the termination of his employment as a Full Professor by the University's Disciplinary Committee on 16th December 2020, later upheld by the Council's Appeals Committee on 15th February 2021. He sought declarations that his rights under Articles 41 and 47 were violated, certiorari to quash the decisions, reinstatement, unpaid salary and allowances, damages, interest and costs. He argued he was on authorised medical leave in the UK, was irregularly sent on one year's unpaid leave, was denied particulars of charges, and that the Disciplinary Committee lacked power to terminate his contract. The Respondents, through the Vice Chancellor's Replying Affidavit, maintained that the Petitioner absented himself without authorisation, violated the University's sick leave statute, solicited a gift from a PhD student, and disregarded reporting structures; that both the disciplinary and appeal hearings complied with the University's statutes, Schedule XIV, and that he was accorded a fair hearing with documents supplied, union representation, and a right of appeal. The court, framing two issues - whether the termination was unfair and whether the Petitioner was entitled to the reliefs sought - held from the detailed disciplinary minutes that a fair statutory process was followed, that valid reasons existed for termination, and that the Petitioner failed to prove his averments. The petition was dismissed with no orders as to costs.

Key legal issues

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01

Whether the Petitioner was accorded a fair disciplinary process and fair hearing

Holding

The court found the process fair: documents were shared, hearings conducted virtually with the Petitioner present, his union representative sat in, and his appeal was heard per the statutes.

Reasoning

The court examined the disciplinary procedure in Schedule XIV of the University Statutes and the detailed minutes of the hearings of 16th November 2020 and 10th December 2020. It found all documents available to the committee were shared with the Petitioner, some sought documents were unavailable by their nature, and the Petitioner responded to allegations and was informed of his right of appeal. The court therefore rejected the claim that particulars were withheld.

p. 10
02

Whether there were valid reasons for termination

Holding

The court held the Respondents had valid reasons: unauthorised absence exceeding 48 hours, violation of leave procedures, and soliciting a gift from a student.

Reasoning

The Respondents established that the Petitioner did not resume duty on 21st October 2019 after sick leave expired, did not complete sick-off forms, was absent without authorisation from January to March 2020, and did not deny receiving Kshs. 3,000 from a student. These grounds, addressed through the statutory disciplinary mechanism, constituted valid and fair reasons for termination.

p. 10
03

Whether the Petitioner proved violation of his constitutional rights under Articles 41 and 47

Holding

The Petitioner failed to discharge the burden of proof; the petition was dismissed.

Reasoning

Despite submissions invoking Articles 27, 41 and 47 and cited authorities on unfair termination and forced unpaid leave, the court found the averments in the petition unproved. The Respondents demonstrated compliance with their statutes including Schedule XIV, the withdrawal of the disputed unpaid leave, payment of salary and CBA arrears, and accommodation of the Petitioner's travel difficulties during the Covid-19 pandemic.

p. 10

Legal principles established

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  • Where an employer's statutes set out a disciplinary procedure and the employee is taken through it, afforded documents, heard, and given a right of appeal, the disciplinary process is fair and termination is lawful if supported by valid reasons.

Court orders

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  1. 1.The petition is dismissed.
  2. 2.No orders as to costs.
Jurisdiction invoked
Articles 41, 47 and 27 of the Constitution of Kenya, 2010 (petition alleging violation of fair labour practices and fair administrative action)

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, "Marwa v Dedan Kimathi University of Technology & 2 others (Petition 113 of 2020) [2024] KEELRC 895 (KLR)", Case Analysis (2024). Petition (filed 22nd July 2020; Amended Petition filed 17th March 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/895/eng@2024-04-12

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