Mutongu v St Paul’s University (Employment and Labour Relations Petition E081 of 2023) [2024] KEELRC 2690 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the summary dismissal was substantively and procedurally unfair
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
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.
Burden of proof under section 47(5) of the Employment Act
The employee need only establish prima facie unfairness, upon which the burden shifts to the employer to justify the termination
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.
Whether the constitutional petitions (Articles 41 and 47) should be determined
No - the dispute is adequately covered by the Employment Act and does not require elevation to constitutional adjudication
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.
Whether reinstatement should be granted
No - reinstatement is not an appropriate remedy given the office has likely been filled and the working relationship would be disharmonious
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.
Legal principles established
#- 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
#- 1.12 months gross salary in compensation for unfair and unlawful termination in the sum of Ksh. 8,505,672
- 2.One month salary in lieu of notice in the sum of Ksh. 708,806
- 3.Total award of Ksh. 9,214,478 with interest at court rates from date of judgment till payment in full
- 4.Costs of the Petition awarded to the Petitioner
- Jurisdiction invoked
- Original jurisdiction under Article 41 and 47 of the Constitution and the Employment Act, 2007 (constitutional petition alleging unfair termination)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.