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ELRCPartially Allowed· [2024] KEELRC 2690 (KLR)

Mutongu v St Paul’s University (Employment and Labour Relations Petition E081 of 2023) [2024] KEELRC 2690 (KLR)

Employment and Labour Relations Court
31 October 2024
2,670 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a former university Deputy Vice Chancellor over Ksh. 9 million after finding his summary dismissal ignored his explanations, breaching the Employment Act.

What this practically means

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Executive summary

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The petitioner, employed by the respondent university since 2005 and serving as Deputy Vice Chancellor, Finance and Administration, was summarily dismissed on 6/4/2023 following allegations that he facilitated an irregular payment of Kshs. 402,696/= termed 'commission' in relation to the hiring of the university's business facilities by the IEBC. He petitioned for declarations of rights violations, unfair dismissal and discrimination, reinstatement, aggravated and general damages and costs. The court framed two issues: whether the dismissal was unfair and what remedies should issue. Applying sections 43, 45, 47(5) and 49(4) of the Employment Act, 2007 and the dual requirement of substantive justification and procedural fairness, the court found the dismissal invalid and unfair. The petitioner's explanations - that the commission was premised on an existing undertaking and that the Vice Chancellor was fully informed before authorising the payment via a letter dated 29/09/2021 - were never explained away by the respondent. The VC had exercised independent judgment, and the dismissal without due consideration of the responses breached section 41 and was discriminatory. However, the court declined to elevate the dispute to a constitutional question, holding it was covered by the Employment Act. Reinstatement was refused as impracticable, the position likely filled and the relationship disharmonious. The court awarded 12 months' gross salary (Kshs. 8,505,672) as compensation plus one month's salary in lieu of notice (Kshs. 708,806), totaling Kshs. 9,214,478, with interest at court rates and costs to the petitioner. Judgment dated 31 October 2024, Nairobi, by Mathews Nduma, Judge.

Key legal issues

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01

Whether the summary dismissal was substantively and procedurally unfair

Holding

Yes - the petitioner's explanations were not considered, the VC was fully informed before authorising the payment, and the process was defective both substantively and procedurally

Reasoning

The court examined the petitioner's response to the show cause letter showing the commission was premised on an undertaking already made, which the respondent never explained away. A letter dated 29/09/2021 showed the VC was fully aware of the circumstances of the Kshs. 402,696 payment before authorising it. The VC exercised independent judgment and could have declined. Dismissing the petitioner without considering his explanations breached section 41 of the Employment Act and was discriminatory and unfair.

p. 5
02

Burden of proof under section 47(5) of the Employment Act

Holding

The employee need only establish prima facie unfairness, upon which the burden shifts to the employer to justify the termination

Reasoning

Relying on Galgalo Jarso Jillo v Agricultural Finance Corporation and Josephine M. Ndungu & others v Plan International Inc, the court held that the employee discharges the section 47(5) burden by placing prima facie evidence suggesting the termination lacks substantive justification or is procedurally flawed, after which the employer must justify the termination. The respondent failed to explain away the petitioner's defence.

p. 4
03

Whether the constitutional petitions (Articles 41 and 47) should be determined

Holding

No - the dispute is adequately covered by the Employment Act and does not require elevation to constitutional adjudication

Reasoning

The court held that where a specific statute comprehensively covers the dispute, it need not be elevated to a constitutional question. The wrongful dismissal was a breach of the employment contract for no valid reason, to be remedied under the Employment Act rather than by constitutional declarations and general damages.

p. 5
04

Whether reinstatement should be granted

Holding

No - reinstatement is not an appropriate remedy given the office has likely been filled and the working relationship would be disharmonious

Reasoning

Applying the Kenya Airways decision and section 49(4) factors, the court noted the petitioner left employment in April 2023, the position of DVC Finance and Administration is an important office likely filled, and given the nature of the allegations a harmonious relationship was unlikely. The court instead awarded 12 months' gross salary as compensation, considering his long service, non-contribution to termination and lack of alternative employment.

p. 6

Legal principles established

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  • For termination to pass the fairness test there must be both substantive justification and procedural fairness
  • Once an employee makes a prima facie case of unfair termination under section 47(5) of the Employment Act, the burden shifts to the employer to justify the termination
  • Reinstatement is discretionary and should be ordered only in very exceptional circumstances, guided by section 49(4) of the Employment Act

Court orders

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  1. 1.12 months gross salary in compensation for unfair and unlawful termination in the sum of Ksh. 8,505,672
  2. 2.One month salary in lieu of notice in the sum of Ksh. 708,806
  3. 3.Total award of Ksh. 9,214,478 with interest at court rates from date of judgment till payment in full
  4. 4.Costs of the Petition awarded to the Petitioner

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 41 and 47
  • Fair Administrative Actions Actsection 4
  • Employment Act, 2007sections 41, 43, 45(4)(b), 47(5), 49(4)

Cases cited (5)

  • Walter Ogal Anuro versus Teachers Service Commission
    [2013] eKLR
  • Galgalo Jarso Jillo v Agricultural Finance Corporation
    [2021] eKLR
  • Josephine M. Ndungu & others v Plan International Inc
    [2019] eKLR
  • Ken freight (EA) Limited v Benson K. Nguti
    [2016] eKLR
  • Kenya Airways Limited versus Aviation & Allied Workers Union Kenya and 3 others
    Civil Appeal No 46 of 2013, [2014]
Jurisdiction invoked
Original jurisdiction under Article 41 and 47 of the Constitution and the Employment Act, 2007 (constitutional petition alleging unfair termination)

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, "Mutongu v St Paul’s University (Employment and Labour Relations Petition E081 of 2023) [2024] KEELRC 2690 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2690/eng@2024-10-31

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