Professor John Sorana Akama v Kisii University, Kisii University Council & Dr. Sara Ruto

expiry of his tenure and subject to his willingness to continue serve the University, to revert to the position of Full Professor while Page 2 of 25

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retaining his basic salary and house allowance in accordance with the applicable Government circulars. 2. The appellant stated that before the expiry of his tenure, he expressed his willingness to revert to the position of Full Professor, following which the 2nd respondent, at its 73rd meeting held on 6th February, 2023, resolved that he would revert to the position in the School of Business and Economics, retain his existing remuneration, and be appointed Coordinator of the Centre of Excellence in Health Education and Training (CEHET) Project under the Kenya–UK Health Alliance (KUKHA). The said resolution was communicated to him by a letter dated 3rd May, 2023. 3. The appellant’s complaint before the ELRC was that the 3 rd respondent subsequently, through a letter dated 10 th July, 2023, purported to revoke the council's decision and unlawfully terminated his employment, thereby usurping the powers of the 2nd respondent, and acting contrary to Clause 31 of the contract. He maintained that the respondents' actions amounted to breach of contract and violated his constitutional rights to fair labour practices and fair administrative action, as well as the provisions of the Employment Act. Page 3 of 25

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4. He further asserted that, having served the University since 2009, and having played a central role in its transformation from a constituent college of another university into a fullyfledged university, reinstatement or re-engagement was the most appropriate remedy. Consequently, he sought declarations that the termination was unlawful, unfair and invalid; sought orders for reinstatement or re-engagement on the terms of his contract dated 28 th January, 2019; payment of salary and allowances from the date of said termination until reinstatement; aggravated and exemplary damages; together with costs of the suit. 5. In response, the 1st and 2nd respondents filed a joint statement of defence dated 9th September, 2024. They admitted that the appellant served as Vice-Chancellor of the 1st respondent for two consecutive five-year terms, the first one running from 12th June, 2013, to 11th June, 2018, and the second from 12th June, 2018, to 11th June, 2023, pursuant to a contract executed on 28th January, 2019. They averred that prior to that, the appellant had served as Principal of Kisii University College, the predecessor of the 1st respondent. They however denied that the appellant had ever been employed by the 1st respondent as a Professor, maintaining that throughout his Page 4 of 25

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engagement with the institution he served only as Principal and later Vice-Chancellor. 6. Regarding Clause 31 of the appellant’s contract, which provided that he would revert to the position of Full Professor upon completion of his tenure as Vice-Chancellor, the respondents acknowledged that the clause formed part of the contract. They nevertheless argued that the clause was incapable of implementation and therefore unenforceable because the appellant had never previously held the position of Full Professor at the 1 st respondent. They asserted that appointment in the said position was governed by the 1st respondent Constitution, its Human Resource Manual and principles of fair competition and merit, requiring advertisement, competitive recruitment, shortlisting and interviews. Since no such recruitment process had ever been undertaken in respect of the appellant’s stated position, he could not lawfully assume the office of Full Professor. 7. The respondents further challenged the authenticity and legal validity of the letter dated 3rd May, 2023, allegedly authored by Dr. Bob Ndubi, to communicate the 2ndrespondent’s resolution allowing the appellant to revert to the position of Full Professorship. They contended that Page 5 of 25

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no such resolution had Page 6 of 25

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been passed by the 2nd respondent, that Dr. Ndubi was not the acting Chairperson of the 2 nd respondent as claimed, and that he lacked authority to issue the letter on behalf of the 2nd respondent. terminating the The respondents appellant’s employment, also denied maintaining instead that his contract simply expired by effluxion of time on 11th June, 2023. They maintained that the appellant was not entitled to reinstatement, or any of the reliefs sought. 8. The respondents also averred that the appellant was, and remained, a substantive employee of Moi University where he serves as a Full Professor, having only taken leave of absence to serve as Vice-Chancellor of the 1 st respondent, and that upon expiry of his contract, he resumed his position at Moi University. They pleaded that the appellant’s suit was an abuse of the court process, as it sought to enable him to simultaneously hold two full-time positions in different State Corporations contrary to Article 77(1) of the Constitution and the Leadership and Integrity Act. 9. The 3rd respondent, in her response to the statement of defence, admitted the existence of the appellant’s contract of employment as Vice-Chancellor and the dates of his tenure as pleaded. She however contended that Clause 31 of the Page 7 of 25

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appellant’s contract, which purported to entitle the appellant to revert to the position of Full Professor upon expiry of his term as Vice Chancellor, was unenforceable, null and void ab initio, because the appellant had never been a Full Professor at 1st respondent prior to his appointment as Vice-Chancellor, and could not revert to a position he had never held. She maintained that before joining the 1st respondent, the appellant had been a Professor at Moi University and had merely proceeded on unpaid leave during his tenure at the 1 st respondent. She further stated that upon the expiry of his contract on 11 th June, 2023, the appellant applied for and was reinstated at Moi University as a Full Professor, where he resumed employment. Consequently, the appellant could neither seek appointment as a Professor at the 1 st respondent without undergoing the constitutionally prescribed competitive recruitment process under Article 232 of the Constitution, nor lawfully hold two substantive public offices simultaneously. 10. The 3rd respondent further denied that the 2nd respondent had lawfully resolved to revert the appellant to the position of Full Professor or appoint him Coordinator of the CEHET Project. She asserted that the letter dated 3rd May, 2023, Page 8 of 25

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was of no legal Page 9 of 25

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consequence because it was authored by a person who was not the acting Chairperson of the 2nd respondent, as no such office existed, and, in any event, no resolution to that effect had been passed during the 2 nd respondent’s 73rd meeting held on 6th February, 2023. She further contended that there was no vacancy for the CEHET Coordinator position, that the position could only have been filled competitively if it existed, and that the project never materialized. The 3 rd respondent maintained that her letter dated 10 th July, 2023, merely informed the appellant that his request to revert to teaching as a Full Professor could not be granted, and did not amount to an unlawful termination of his employment. 11. The 3rd respondent's position was that the appellant’s employment as Vice-Chancellor was a fixed-term contract which expired by effluxion of time on 11 th June, 2023, and therefore there was no dismissal or termination capable of being impugned. She denied that the respondents had breached the appellant’s contract, violated the Employment Act, infringed the appellant’s constitutional rights or committed any wrongful or unconstitutional acts. She consequently asserted that the remedies of reinstatement or re-engagement were unavailable in law, particularly because Page 10 of 25

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the appellant had already resumed employment at Moi University. 12. The case was heard by way of viva voce evidence. The parties generally reiterated the averments made in their respective pleadings. 13. Upon considering the evidence and the parties' submissions, the learned Judge found in favour of the appellant. The ELRC held that the existence of the contract of service between the parties was not in dispute, and that Clause 31 thereof was valid and binding, having been voluntarily executed by both parties. Although the appellant’s appointment as Vice-Chancellor was for a fixed term, the court held that Clause 31 expressly preserved his right to revert to the position of Full Professor upon the expiry of that term should he elect to do so. The ELRC found that the appellant had unequivocally manifested his intention to continue serving the 1st respondent by his letter dated 6th December 2022, and that the respondents unlawfully and unfairly terminated the appellant’s employment without following due process. 14. Having found the termination unlawful, the ELRC declined to grant the remedies of reinstatement, salary arrears and aggravated damages, finding reinstatement impracticable. Page 11 of 25

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Instead, it awarded the appellant compensation for unfair termination equivalent to three months' gross salary in the sum of Kshs. 2,109,051/=, together with three months' commuter allowance and the costs of the suit. 15. Both the appellant and the respondents were aggrieved by this decision, and lodged their respective appeals before this Court. The separate appeals were subsequently consolidated and heard together by an order of this Court. 16. The appellant’s appeal challenged only the remedies granted by the ELRC. In summary, the appellant contended that the learned Judge erred in law and fact by declining to order his reinstatement or re-engagement notwithstanding the finding that Clause 31 of the contract of employment was valid and enforceable; by failing to grant the equitable remedy of specific performance of the contract; by declining to award his salary and contractual allowances from the date of the alleged unlawful termination until reinstatement; and by refusing to award aggravated and exemplary damages notwithstanding the court's finding that the respondents had subjected him to unjustified and unfair treatment. 17. The 1st and 2nd respondents lodged a cross-appeal challenging the ELRC's findings. In summary, they contend Page 12 of 25

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that the Page 13 of 25

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learned Judge erred in law and fact by failing to dismiss the appellant's claim; by holding that Clause 31 of the contract of employment was valid, enforceable and applicable notwithstanding that the appellant had never previously served as a Full Professor at the 1 st respondent by finding that the appellant's contract had been unlawfully terminated instead of holding that it expired by effluxion of time on 11th June 2024; by failing to find that the appellant was not entitled to any of the reliefs sought; by according legal effect to the letter dated 3 rd May 2023 allegedly authored by Dr. Bob Ndubi despite evidence that it was unauthorized and invalid; by awarding the appellant compensation equivalent to three months' salary; by failing to properly evaluate the respondents' pleadings, evidence and submissions; and by failing to find that, upon expiry of his leave of absence, the appellant lawfully resumed his substantive position at Moi University and could not simultaneously hold another full-time public office at the 1 st respondent contrary to law. Accordingly, the respondents invited us to set aside the judgment of the ELRC and substitute it with an order dismissing the appellant's claim with costs. Page 14 of 25

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18. The consolidated appeal was canvassed by way of written submissions which parties duly filed. The written submissions were briefly highlighted during plenary hearing. 19. Learned counsel for the appellant, Mr. Mwani, submitted that the ELRC, having correctly found that Clause 31 of the appellant's contract of employment was valid and enforceable, erred by declining to grant the consequential remedies of reinstatement, specific performance, salary arrears and aggravated damages. Counsel submitted that the contract of employment was voluntarily entered into by the parties, and that it expressly provided under Clause 31 that, upon expiry of his tenure as Vice-Chancellor and subject to his willingness to continue to serve the university, the appellant would revert to the position of Full Professor. He argued that the respondents, having drafted and signed the contract, were bound by its terms and could not subsequently asserting avoid that the their contractual clause was obligations by impracticable or unconstitutional. It was further contended that no evidence was adduced to show that the contract had been vitiated, and that any ambiguity in the contract ought to be construed against the respondents as the authors thereof. Page 15 of 25

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20. Counsel further urged that the respondents had themselves acknowledged and implemented Clause 31 through the letter dated 3rd May 2023, communicating the 2nd respondent’s decision that the appellant would revert to the position of Full Professor upon expiry of his tenure. He submitted that the subsequent letter issued by the 3 rd respondent purporting to invalidate that decision amounted to an unlawful unilateral variation of the contract. He urged that the appellant's removal from office was unlawful, unfair and in breach of both the contract and the constitutional guarantee of fair administrative action. 21. On the appropriate remedy, the appellant’s counsel submitted that reinstatement was the most suitable relief. He argued that the appellant had demonstrated exceptional circumstances warranting reinstatement, particularly given that he had less than five years before attaining the age of retirement. Counsel also maintained that the appellant was entitled to salary and allowances from the date of the unlawful termination until reinstatement, together with aggravated and exemplary damages arising from the respondents' arbitrary and unjustified conduct. Page 16 of 25

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22. With regard to the respondents' contention that the appellant was a Professor at Moi University, counsel submitted that the issue was a red herring. He argued that the appellant had proceeded to the 1 st respondent on an approved leave of absence from Moi University and had received no remuneration from Moi University during his tenure as Vice-Chancellor. Counsel further submitted that the respondents were aware of that arrangement when they entered into the contract, and that the appellant's employment relationship with Moi University did not affect the enforceability of his contract with the 1 st respondent. He faulted the respondents for failing to avail material witnesses and documents, including the author of the letter dated 3rd May 2023, and the minutes of the relevant 2 nd respondent’s meeting. He urged us to allow the appeal and dismiss the respondents’ cross-appeal. 23. In rebuttal, learned counsel for the 1 st and 2nd respondents, Mr. Odwa, submitted that the appellant's five-year contract as Vice-Chancellor was a fixed-term contract which came to an end by effluxion of time. He averred that the appellant himself acknowledged the expiry of the contract in his letter to Moi University seeking reinstatement to his former position as Professor and was subsequently reinstated to Page 17 of 25

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that position. It Page 18 of 25

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was therefore contended that the appellant could not maintain that he had been unlawfully terminated by the respondents after having accepted that his contract had expired and resumed employment with his former employer. 24. Counsel further supported the ELRC’s finding that reinstatement was unavailable, arguing that contracts of personal service are generally not specifically enforceable, and that no exceptional circumstances had been demonstrated by the appellant. He further contended that reinstatement was impracticable in light of the manner in which the appellant exited office, the subsequent decisions of the 2nd respondent, and the fact that the appellant already had a substantive position awaiting him at Moi University. Counsel also maintained that the appellant had not challenged the respondents' decision through the appropriate channels and therefore reinstatement was undeserved remedy. 25. On the claim for salary and allowances until reinstatement, Mr. Odwa submitted that such relief was untenable because the appellant rendered no services to the 1 st respondent after his tenure as Vice-Chancellor ended. He urged that wages are payable only for work performed under a Page 19 of 25

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contract of service. Regarding aggravated and exemplary damages, counsel Page 20 of 25

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submitted that the appellant failed to establish any oppressive, arbitrary, unconstitutional or malicious conduct on the part of the respondents to justify such an award. 26. On the cross-appeal, counsel argued that the learned Judge erred in holding that Clause 31 of the appellant's contract was enforceable. He contended that the clause was inapplicable because, prior to his appointment as ViceChancellor, the appellant had not been a Full Professor at the 1st respondent but was an employee of Moi University. Consequently, the appellant had no position to which he could revert to upon expiry of his contract. Counsel further submitted that the contract had expired by effluxion of time and that the appellant's return to employment at Moi University confirmed employment that relationship there with was no subsisting the 1st respondent. He accordingly prayed that the cross-appeal be allowed, and the appellant’s appeal be dismissed with costs. 27. On behalf of the 3rd respondent, learned counsel Mr. Mbabu, made submissions in support of the 1 st and 2nd respondents’ cross appeal, and in opposition to the appellant’s appeal. Counsel submitted that the appellant's employment as Vice- Chancellor was under a fixed-term contract that expired by effluxion of time. Consequently, no Page 21 of 25

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claim for unfair termination Page 22 of 25

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could arise, as the employment relationship ended automatically upon expiry of the agreed term. Counsel further urged that the learned Judge failed to consider the appellant's own letter to Moi University acknowledging that his contract with the 1st respondent had lapsed by effluxion of time. 28. It was his submission that Clause 31 of the employment contract was unenforceable and incapable of performance because the appellant had never served as a Full Professor at the 1st respondent before his appointment as ViceChancellor. He argued that one can only revert to a position previously held and that the appellant remained a substantive employee of Moi University, from where he had proceeded on leave of absence to serve as Vice-Chancellor. Counsel maintained that enforcement of Clause 31 would also offend Articles 201(d) and 232 of the Constitution by effectively appointing the appellant to a public office without a competitive recruitment process and allowing him to retain the remuneration attached to the office of ViceChancellor. 29. Counsel also challenged the ELRC’s reliance on the letter dated 3rd May, 2023, submitting that it lacked legal effect as it was authored by a person who had no authority to act on Page 23 of 25

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behalf of the 2nd respondent, did not emanate from any valid Page 24 of 25

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2nd respondent’s resolution, and was inconsistent with the minutes of the 73rd 2nd respondent’s meeting. He therefore urged the Court to find that the learned Judge erred in concluding that the appellant had been unfairly terminated and to allow the cross-appeal. 30. This being a first appeal, our role as the first appellate court was well set out in the case of Selle vs Associated Motor Boat Co. Ltd [1968] EA 123 where Sir Clement De Lestang stated that: “This court must consider the evidence, evaluate it itself and draw its own conclusions though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect. However, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.” 31. Having re-evaluated the grounds and the record of appeal, the rival submissions by the parties, and the applicable law, we have distilled the issues for our consideration as follows: whether Clause 31 of the appellant's contract of employment was valid and enforceable; whether the Page 25 of 25

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appellant's employment was whether the appellant was entitled Page 26 of 25 unlawfully terminated;

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to reinstatement, re-engagement or specific performance; whether he was entitled to salary and allowances from the date of termination until reinstatement; whether aggravated and exemplary damages were payable; and finally, whether there exists any basis for interfering with the judgment of the ELRC. 32. The main issue in both the appeal and the cross-appeal concerned the legal effect of Clause 31 of the appellant's contract of employment. The respondents contended that the clause was unenforceable because the appellant had never served as a Full Professor at 2nd respondent prior to his appointment as Vice-Chancellor, and that any appointment to such office was constitutionally required to undergo a competitive recruitment process. The appellant, on the other hand, maintained that Clause 31 formed part of a freely negotiated contract which the respondents drafted and voluntarily executed, and that they cannot subsequently depart from its terms. Clause 31 of the said contract provided as follows: "EXPIRY OF CONTRACT At the end of the current contract and on his willingness to serve the University, the Vice Chancellor shall revert to teaching and undertaking research as a Full Professor in the appropriate Faculty/School and shall Page 27 of 25

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continue to draw (b) considering (a) the basic salary, house allowance and in terms of Cabinet Secretary, Page 28 of 25

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Ministry of Education: Ref No. MOE/CONF/4/1 dated on the 5th December, 2018 and as stipulated in an earlier circular by the Head of Public Service, Ref:OP/SCAC.1/12(11) dated on the 14th May, 2015.” 33. There are certain facts that are not in dispute in this appeal. It is not disputed that the appellant served on a fixed term contract as the Vice Chancellor of the 1st respondent. He served for two consecutive terms of five years each which expired on 11 th June, 2023. He had also served as Principal of the constituent College prior to its elevation to University. All these positions were administrative in tenure and not academic. In so far as the issue as to what type of employment contract the appellant served while he was Vice Chancellor, both the appellant and the respondents agree that the said contract terminated by effluxion of time on 11th March 2023. 34. Another fact which is not disputed is that prior to his employment as an administrator (the Vice Chancellor’s position is administrative), the appellant was employed as a Professor at Moi University. It is common ground that the appellant did not at any time work as a Professor at the 1st respondent. 35. It is further not contested that upon the expiry of the appellant’s fixed term contract as Vice Chancellor of the Page 29 of 25

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1st Page 30 of 25

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respondent, his employment contract as a Professor of Moi University, from which he had taken leave of absence without pay, was restored with full benefits. 36. Indeed, in the letter dated 24 th February, 2009 by Moi University, which released the appellant to proceed on “unpaid leave of absence”, paragraph 3 stated as follows: “Please note that during the period of your unpaid leave, payment of salary and other allowances including other benefits stipulated in the terms of service will be suspended until you resume your duties with the University.” 37. Upon the expiry of the appellant’s term of service as Vice Chancellor of the 1st respondent, he reverted to his position as Professor at Moi University. The said University communicated the appellant’s reinstatement of appointment as full Professor in a letter dated 6 th May, 2024. 38. We are there unable to find any substance in the appellant’s assertion that upon expiry of his fixed term contract as Vice Chancellor of the 1 st respondent, he was entitled to “revert” back to the position of Professor at the 1st respondent yet at no time in his academic career had he ever served as a Professor of the 1 st respondent. Page 31 of 25

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39. In that regard the finding made by the learned trial Judge that the appellant was entitled to “revert” back to his position as Professor of the 1 st respondent had no basis in fact and in law. The only position that the appellant could revert to before expiry of his fixed term as Vice Chancellor was the position of Professor that he previously occupied at Moi University. The appellant had already been reinstated to that position and cannot insist that he be reinstated to a non-existent position of Professor of the 1st respondent that he did not have in the first place. 40. It is the above context that clause 31 of the contract of employment must be considered. The said clause in material part states as follows: “ Expiry of Contract. At the end of the current contract and his willingness to serve the University, the Vice Chancellor shall revert to teaching and undertaking research as a Full Professor in the appropriate facility/school and shall continue to draw (b) considering (a) the basic salary, house allowance in terms of Cabinet Secretary, Ministry of Education; Ref.No.MOE/CONF/4/1 dated on 5th December, 2018 and stipulated in an earlier circular by the Head of Public Service Ref OP/SCAC1/12/(II) dated on the 14th May, 2015.” 41. For the above clause to be given effect to, certain preconditions had to be satisfied; the appellant’s willingness Page 32 of 25

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to serve, the availability of a teaching and research position in Page 33 of 25

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the appropriate faculty/school, the appellant MUST have served as Full Professor in the 1 st respondent in a such position that he can “revert to”. The other pre-condition is that the application of the said clause was subject to the Circular Ref. No. MOE/CONF/4/1 dated 5th December 2018 issued by the Ministry of Education. 42. It was clear from the evidence adduced before the trial Court that the above clause of the employment contract was incapable of performance due to non-availability of appropriate faculty/school that the appellant could revert to as Full Professor. The fact that the appellant was not Full Professor of the 1st respondent before his appointment as Vice Chancellor meant that there was no such position available that he could “revert to” upon expiry of his fixed term contract as Vice-Chancellor. 43. It was therefore not unsurprising that the appellant, in his letter dated 6th December, 2022, upon expressing his willingness to serve, asked to serve as a Full Professor of the School of Business and Economics, not to teach and research but to be appointed to a yet to be established position as 1st respondent’s co-ordinator of the Centre for Excellence In Health Education and Training (CEHET) Project in Kenya –UK Alliance (KUKHA). When established, this will be an administrative and not a teaching or research Page 34 of 25

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position. The appellant as Full Professor in the Department Page 35 of 25

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of Tourism and Tour Operations Management in the School of Tourism, Hospitality and Events Managements at Moi University could not concurrently be appointed as Full Professor of the School of Business and Economics of the 1st respondent when he did not hold such position before his appointment as Vice Chancellor. 44. It has been submitted by the appellant that the respondents cannot resile from the letter dated 3 rd May, 2023 written by one Dr. Bob Ndubi allegedly on behalf of the 2nd respondent. The said letter purports to appoint the appellant as the 1st respondent’s co-ordinator of the Centre of Excellence in Health Education and Training (CEHET), a project under the Kenya-UK Health Alliance (KUKHA). This position does not exist. The said letter states that the appointment was made in the 73 rd Meeting of the 2nd respondent held on 6th February, 2023. The respondents deny that any such meeting took place or that Dr. Bob Ndubi acted as Chairperson of the 2 nd respondent during the material time. Although the minutes of the 73rd Meeting of the 2nd respondent were not produced, the respondents insisted that no such issue was discussed in the meeting nor was Dr. Bob Ndubi authorized to write such a letter of appointment to the appellant. We are satisfied that no such Page 36 of 25

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agenda was discussed in the meeting. The assertion by the Page 37 of 25

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respondents that Dr. Ndubi was not acting as the Chairperson of the 2nd respondent at the time and was therefore not authorized to write the purported letter of appointment is credible. 45. We are satisfied that the appellant’s employment contract as Vice Chancellor of the 1 st respondent was a fixed term contract that ran its course. There was nothing left for the respondents to be held liable for. There was no position available in the 1 st respondent’s academic structure for the appellant’s employment to transition to. Clause 31 of the contract of employment was frustrated and could not be performed due to non-fulfillment of conditions precedent. We are further satisfied that no valid letter of appointment was ever written to the appellant by the respondents to entitle the appellant to be paid any damages, aggravated, exemplary or otherwise for alleged unlawful termination of contract of employment. The existence of a lawful employment contract was not established to the required standard of proof. 46. It is evident from our foregoing re-evaluation of the evidence and the grounds of appeal that the appeal by the 1st and 2nd respondents (In Civil Appeal No. E096 of Page 38 of 25

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2025) has merit Page 39 of 25

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and shall be allowed. The appellant’s appeal in Civil Appeal No. E055 of 2025 lacks merit and is for dismissal. 47. In the premises therefore, the appeal for the 1 st and 2nd respondents is allowed, the Judgment and decree of the ELRC delivered on 27th January, 2025 is hereby set aside and substituted by Judgment of this Court dismissing the appellant’s claim in its entirety. The appellant’s appeal has no merit and is hereby dismissed. 48. In light of the long years of service that the appellant rendered to the respondents, we are of the considered view that each party should bear their own costs both before the ELRC and before this Court on appeal. Dated and delivered at Kisumu this 25th day of September, 2026. ASIKE-MAKHANDIA .......................... .. JUDGE OF APPEAL H.A. OMONDI ........................ JUDGE OF APPEAL L. KIMARU ..................... JUDGE OF APPEAL I certify that this is a true copy of original. Page 40 of 25

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Signed DEPUTY REGISTRAR Page 41 of 25

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