[2024] KEELRC 358 (KLR)

Ogola v Machakos University (Employment and Labour Relations Petition E105 of 2023) [2024] KEELRC 358 (KLR) (23 February 2024) (Judgment)

Neutral citation: [2024] KEELRC 358 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Employment and Labour Relations Petition E105 of 2023

AN Mwaure, J

February 23, 2024

Between

Prof. Fred Ogola

Petitioner

and

Machakos University

Respondent

Judgment

Introduction 1. The Petitioner filed a Petition dated 23rd June 2023.

Petitioner’s Case 2. The Petitioner avers that on 12th September 2018 he was employed by the Respondent as a Professor Grade 15 in the School of Education, Department of Educational Foundations, then on 24th October 2018, he was appointed as a Director (Research, Innovation and Technology).

3. The Petitioner avers that he was subsequently appointed as the Acting Deputy Vice Chancellor (Administration, Planning and Finance) (‘DVC (APF) and reported to work on 1st February 2022 and was expected to report to the Vice Chancellor at all times. Prior to this appointment he was undertaking academic duties.

4. The Petitioner avers that he ceased acting as DVC (APF) on 31st July 2022 as per the University Council Resolution of 14th July 2022 and resumed his duties as a professor of the university.

5. The Petitioner avers that he was accused of insubordination, incitement and abuse of office accusations which may not be applicable to the position of a professor but to the position of the Acting Deputy Vice Chancellor (Administration, Planning and Finance) and without clear knowledge of who incited and how it was done and it was the said allegation that caused his termination as the Professor Grade 15, School of Education, Department of Educational Foundations and Acting DVC (APF).

6. The Petitioner avers that he was not given any warning or notice but on 5th August 2022, he received a show cause letter from the Chairman of Council and it was not clear why he received the letter yet he had received a performance appraisal letter dated 15th March 2022 in which his performance was rated as “Very Good”.

7. The Petitioner avers that he received the show cause letter after he had requested for an extension of his acting period as DVC (APF) which was declined vide a letter dated 21st July 2022.

8. The Petitioner avers that he was terminated without investigating the allegations that were levelled against him and his appeal was not accorded a fair hearing before an impartial body since the hearing was chaired by the Chairman of the Council, the same person who had sent him the show cause letter.

9. The Petitioner avers that the proceedings held on 30th August 2022 was not impartial as the same was attended by the legal officer who was the accuser, the investigator, the prosecutor and the judge before the Committee and the process was totally unfair to the Petitioner.

10. The Petitioner avers that no investigation report was tabled and no witnesses were summoned to testify when the Petitioner appeared before the staff disciplinary committee held on 30th September 2022 which would assist clarify the chronology of events and avail evidence and witness to support or reject each item contained in the charges.

11. The Petitioner avers that the Appeals Committee never invited him to appear before it to interrogate the witnesses neither was he informed of the membership of the committee and how the voting happened.

Respondent’s Case 12. In opposition to the Petition, the Respondent filed its replying affidavit dated 16th August 2023.

13. The Respondent avers that the Petitioner was not employed as Acting Deputy Vice Chancellor (Administration, Planning and Finance) on a permanent basis but for a term of six months from 1st February 2022 to 31st July 2022.

14. The Respondent avers that he was first employed by Machakos University on 12th September 2018 as a Professor Grade 15 in the School of Education, Department of Educational Foundations; subsequently, on 24th October 2018, the Petitioner was appointed in an acting capacity as Director, Research Innovation and Technology for a period of six months’ renewable once for a further six months’ subject to satisfactory performance.

15. The Respondent avers that on 1st February 2022, the Petitioner was appointed for a period of six months as Acting Deputy Vice Chancellor (Administration, Planning and Finance); on 28th April 2022, the Petitioner received a letter containing details of his aforesaid appointment which provided that the Petitioner would be reporting to the Vice Chancellor including any person appointed by the University Council to act in such capacity in the absence of the substantive office holder. The Petitioner’s aforesaid appointment came to an end on 31st July 2022.

16. The Respondent avers that between February 2022 to 24th November 2022, the university’s substantive Vice Chancellor, Professor Lucy Irungu, was on official annual leave and the University Council appointed Professor Peter Mwiti to the position of Acting Vice Chancellor in her absence. The Petitioner was aware of this and he attended several university management board meetings and other functions during this period.

17. The Respondent avers that on 8th July 2022, the Petitioner wrote to the Acting Vice Chancellor requesting for an extension of his appointment as Acting Deputy Vice Chancellor (Administration, Planning and Finance) for a further period beyond the six-month period. This shows he was aware the Acting Vice Chancellor was carrying out duties of the Vice Chancellor in her absence and he was mandated to report to the Acting Vice Chancellor in the performance of his duties.

18. The Respondent avers that the Petitioners request was tabled before the university council during its meeting on 14th July 2022 and the council declined the request. The university council’s decision was communicated to the Petitioner by the Acting Vice Chancellor vide a letter dated 21st July 2022.

19. The Respondent avers that on 3rd August 2022, the Petitioner sent an email to the substantive Vice Chancellor, forwarding two letters on the letterhead of ‘Machakos University Office of the Vice Chancellor’ for her signature when the Petitioner was aware she was away on official leave and there was an Acting Vice Chancellor, duly appointed by the university council acting in her place. The two letters were:i.A letter in which the substantive Vice Chancellor was purportedly appointing the Petitioner to stand in her place from 3rd August 2022 to 19th August 2022. ii.A letter in which the substantive Vice Chancellor was purportedly instructing the Legal Officer to hand over to the Petitioner both hard and soft copies of the University’s draft Reviewed Statutes, 2016.

20. The Respondent avers the Petitioner’s actions amounted to insubordination, sabotage, incitement and abuse of the office requiring disciplinary action for the following reasons:i.There was a duly appointed Acting Vice Chancellor carrying out the duties of the Vice Chancellor and all communication ought to have been sent to the Acting Vice Chancellor.ii.The Petitioner was aware that there was a duly Acting Vice Chancellor when he sent the letters.iii.The Petitioner’s action of appointing himself as Acting Vice Chancellor amounted to insubordination as the authority to appoint a Deputy Vice Chancellor is vested solely and exclusively on the University Council.

21. The Respondent avers that the offences are applicable to any employee of the University regardless of their rank and are not limited to the Petitioner’s position as Acting Vice Chancellor but applicable to the position of full professor.

22. The Respondent avers that the offences of insubordination and abuse of office are contained in Clause 27. 3.2 (h) of the Machakos University Human Resource Policy and Procedure Manual 2019 and Clause 4. 6 (a), (d) and (e) of the Public Service Commission Discipline Manual of the Public Service 2016 which are also found in Section 44(4) (d) and (g) of the Employment Act.

23. The Respondent avers that vide a show cause letter dated 5th August 2022, the Petitioner was required to show cause why appropriate disciplinary action should not be taken against him for the offences of gross misconduct contrary to Clause 27. 3.2 (h) of the Machakos University Human Resource Policy and Procedure Manual 2019; Clause 4. 6 (a), (d) and (e) of the Public Service Commission Discipline Manual of the Public Service 2016 and Section 44(4) (d) and (g) of the Employment Act.

24. The Respondent avers that the show cause letter clearly disclosed to the Petitioner the charges against him and particulars of the offences and attached the memos that were subject of the charges. The Petitioner was given sufficient notice of seven days to respond.

25. The Respondent avers that the show cause letter was signed by the Chairman of the University Council owing to the sensitivity of the matter and it was not appropriate for the Acting Vice Chancellor to sign for the reason that the one of the subject memos purported to appoint the Petitioner as the Acting Vice Chancellor. It is for this reason that the Petitioner was directed to submit is response to the Chairman of the University Council and further the position of professor grade 15 and Ag Vice Chancellor are recruited by the University Council.

26. The Respondent avers that clause 27. 0(1) of the Machakos University Human Resource Policy and Part 5. 0 of the Public Service Commission Disciplinary Manual, 2016 do not specify who is supposed to sign a show cause letter and only provides for the right of appeal and review by an aggrieved employee. Therefore, it is not correct that the disciplinary process was flawed on account of the show cause letter being signed by the Chairman of the University Council.

27. The Respondent avers that the University Council’s decision to reject the Petitioner’s request for an extension of his term as Acting Deputy Vice Chancellor on 21st July 2022 had no relation to the disciplinary process as this was done before the memos that were the subject of the charges were sent.

28. The Respondent avers that the Petitioner responded to the show cause letter vide a letter dated 11th August 2022 in which he did not address any charges contained in the show cause letter. The Petitioner instead brought out issues of discrimination, victimization, threats and conflict of interest with reference to the University Council’s refusal to extend his term as Acting DVC.

29. The Respondent avers that in his response, the Petitioner did not challenge the validity of the show cause letter and did not raise any objection that the letter was signed by an unauthorised person as alleged.

30. The Respondent avers that the Petitioner was then served a notice dated 18th August 2022 inviting him to attend the senior disciplinary committee on 30th August 2022 to answer to charges outlined in the notice in accordance with clause 35. 0 of the University’s Human Resource Policy and Procedure Manual 2019.

31. The Respondent avers that the notice met the constitutional threshold for fair administrative action and right to be heard as: it specified the nature of charges, gave the Petitioner 12 days’ notice which was sufficient time to prepare for the proceedings, informed the Petitioner his right to be accompanied by his trade union representative or fellow university employee of his choice and gave him 7 days to submit his written response.

32. The Respondent avers that the Petitioner submitted his written defence vide a letter dated 23. 08. 2022 in which he stated the letters were sent by mistake and duly apologised. He further stated that the emails were private communications and the 3rd party who accessed the same was in breach of the Data Protection Act.

33. The Respondent avers that the Petitioner appeared before the Senior Staff Disciplinary Committee on 30. 08. 2022 accompanied by a representative of his union, UASU. At the hearing, the charges were read out to the Petitioner and he was given an opportunity to respond, which both the Petitioner and the union representative did.

34. The Respondent avers that the Petitioner did not raise any allegation of lack of impartiality, lack of investigations and/or that the committee members were based on tribal bias during the proceedings. The Petitioner was charged with the offence of gross misconduct warranting summary dismissal hence no investigation was required.

35. The Respondent avers that since the Petitioner admitted in his written response that he sent the emails which were subject of the charges, there was no need for the committee to investigate.

36. The Respondent avers that upon deliberation, the Committee found the Petitioner guilty of the charges against him and resolved to terminate the Petitioner’s employment with benefits.

37. The Respondent avers that the Petitioner’s employment was terminated vide a letter dated 12. 09. 2022 and the letter informed him of his right to appeal to the Chairman of the University Council within 21 days. The proceedings of the disciplinary committee were also forwarded vide a letter dated 20. 09. 2022.

38. The Respondent avers that the Petitioner presented his appeal vide a letter dated 14. 09. 2022 and the Senior Staff Appeals Committee sat on 03. 11. 2022 and deliberated on the Petitioner’s ground of appeal, disciplinary process, proceedings of the disciplinary proceedings and the union representative’s submissions and resolved to uphold the disciplinary committee’s decision. The Committee’s resolution was communicated to the Petitioner vide a letter dated 09. 11. 2022.

39. The Respondent avers that there is no requirement for the Petitioner to be invited to attend the proceedings of the Senior Staff Appeals Committee or that oral evidence be adduced before it. The Committee was mandated to interrogate and deliberate on the written grounds of appeals submitted by the Petitioner and interrogated the process and proceedings of the Staff Disciplinary Committee.

Petitioner’s Submissions 40. The Petitioner submitted that the law requires that before an employee is dismissed from employment, proper and exhaustive investigations must be conducted. He relied on Fredrick Odongo Owegi v Cfc Life Assurance Limited [2014] eKLR and Part 27. 0 (b) of the Human Resource Manual which provides for investigations when an employee is suspected of misconduct.

41. The Petitioner submitted that the Respondent in violation of the law and its own procedure, failed to table any investigation report when the Petitioner appeared before the disciplinary committee on 30. 09. 2022. further, vide its replying affidavit, the Respondent concede that they decided not to conduct investigations into the allegations and has not tendered any lawful excuse as to why they saw it not fit to conduct investigations. This was a violation of the Petitioner’s right to fair administrative action and fair hearing.

42. The Petitioner submitted that as a result of the Respondent’s failure to investigate the allegations, it led to the Petitioner being charged with unfounded grounds.

43. The Petitioner submitted that he was charged with an alleged offence of insubordination, the Respondent did not disclose to the Petitioner the nature of this offence. The Petitioner submits that he never committed the offence of insubordination, he performed his duty in accordance with the terms of reference and regulations; there was no lawful direction he defied or disobeyed any direction given to him by the substantive VC pursuant to the appointment as the Acting DVC, Administration, Planning and Finance.

44. The Petitioner submitted that he never challenged the authority of the Acting VC, the Respondent has failed to substantiate the charge hence there is no complainant.

45. The Petitioner submitted that he is being singled out and targeted for communicating with the substantive VC while every other employee was doing the same without being reprimanded.

46. The Petitioner submitted that the disciplinary process was triggered by a memo which had the blessings of the substantive VC, which was since withdrawn and he apologised to that effect. This shows the Petitioner was cognisant of the authority and obeys it by way of apology. The Petitioner submits that he was not informed that he was not supposed to communicate with the substantive VC and this does not constitute insubordination.

47. The Petitioner submitted that contrary to the Respondent’s allegations of incitement, his communication to the substantive VC on 03. 08. 2022 was innocuous and in continuation of earlier discussion on matters concerning: the University Council Resolution of 14. 07. 2022 that all acting positions in university will be rotational nullifying the recognition of those holding positions on acting capacity; continual use of the University vehicle KCK 926U contrary to the substantive VC’s approval dated 12. 01. 2022 that would be on standby for use by the legal officer; and other malpractices as captured in the Petitioner’s letter to the Ag VC dated 4. 08. 2022 which the Ag VC failed to respond hence the further communication between the Petitioner and the substantive VC.

48. The Petitioner submitted that the Respondent has failed to substantiate the allegations against the Petitioner and is abusing the provisions of summary dismissal. The courts have taken judicial notice that employers abuse these provisions and the Respondent is not an exception. He relied in Mary Chemweno Kiptui v. Kenya Pipeline Company Limited [2014] eKLR.

49. The Petitioner submitted that the Appeal Committee conducted its proceedings in secrecy and against the law, it did not reveal its composition. Further, the trial disciplinary committee made the resolution to terminate his employment was improper and unlawful constituted as the VC, a key component of the committee as per the Respondent’s Human Resource Manual was absent.

50. The Petitioner submitted that the disciplinary proceedings were chaired, conducted and attended by conflicted and biased persons therefore the process was biased, partial, predetermined, unfair and a sham. The chairman of the university council chaired the appeals committee despite the fact that he signed the show cause letter and one cannot have conflicting roles in a process affecting legal rights of another person.

51. The Petitioner submitted that despite being conflicted with the Petitioner, Mumbi Mwihuri, proceeded to sit and attend the disciplinary proceedings as legal counsel advising the disciplinary committees.

52. The Petitioner submitted that he was not given an opportunity to cross examine and examine the authenticity of the allegations of gross misconduct abuse of office and insubordination during the hearing.

53. The Petitioner submitted that the termination was marred by illegalities and irregularities as it was the Respondent used unauthorised individuals who had no vested lawful authority and power to execute his termination.

54. The Petitioner submitted that his employment as a full professor of Machakos University is distinguishable from the office and duties of an Acting DVC, Administrative, Planning & Finance. The purported misconduct happened when he was discharging the duties of Acting DVC for a period of 6 months hence should not be visited upon his permanent and pensionable job as a full professor. He relied on the Court of Appeal case, Maasai Mara University & another v Misia Manuguti Kadenyi [2021] eKLR.

55. The Petitioner submitted that in view of the foregoing procedural and substantive violation of the Petitioner’s rights by the Respondent, this court has the power to intervene and correct the malicious and pre-determined termination as affirmed in Kamau v Kenya Accreditation Service (Petition E053 of 2021) [2021] KEELRC 8 (KLR) (30 July 2021) (Judgment).

56. The Petitioner submitted that this court has power to grant the prayers sought including reinstatement where employers terminate employees unfairly and unprocedural as seen in Misia Manuguti Kadenyi v Maasai Mara University & 3 others [2018] eKLR.

Respondent’s Submissions 57. The Respondent submitted that the prayers sought in the Petition show that it is a claim for unfair termination of employment opposed to violation of constitutional rights. Therefore, in accordance with Anarita Karimi Njeru v Republic [1979] KLR 154, the instant petition should be struck out and the Petitioner be directed to file a statement of claim in which oral evidence can be tendered and challenged by way of cross examination to enable the court to effectively adjudicate the dispute.

58. The Respondent submitted that the alleged contravention of the provisions of the Employment Act, Fair Administrative Actions Act, The Universities Act and Machakos University Human Resource Policy Manual 2019 are not alleged violation of constitutional rights.

59. The Respondent submitted that the Petitioner has not laid out a prima facie case of discrimination through evidence to prove the disciplinary proceedings were tainted by discrimination. The Respondent’s refusal to extend his term as Acting DVC is not an issue in dispute and the Petitioner has not provided any evidence to show he was treated differently from any other Acting DVC.

60. The Respondent submitted that the Petitioner did not plead or produce evidence proving violation of his right to privacy and freedom of expression.

61. The Respondent submitted that there is no express provision in Article 47 of the Constitution that investigations be carried out as part of fair administrative process. What is require is expeditious, fair, lawful and reasonable administrative action.

62. The Respondent submitted that the Petitioner admitted that he sent emails that were subject of the disciplinary proceedings and as such there was nothing to investigate. Further, he has not led evidence to show how the alleged failure to carry out investigations infringed his right to fair administrative action or fair hearing as he is required by Anarita Karimi [supra] and Mumo Matemu Vs. Trusted Society of Human Rights Alliance & 5 others [2013] eKLR.

63. The Respondent submitted that the Petitioner did not adduce any evidence to prove the alleged bias against him during the disciplinary process and the Respondent’s legal officer. The legal officer clearly deponed she did not deliberate in the disciplinary proceeding or vote as she attended as an ex officio member to give advice on legal issues. It relied on Lady Justice Kalpana H. Rawal & 2 others v Judicial Service Commission & 6 others [2016] eKLR.

64. The Respondent submitted that the Petitioner’s term as Acting Vice Chancellor expired on 31. 07. 2022, where he reverted to his permanent position as full professor. The offence that led to disciplinary action were committed on 03. 08. 2022 after his term as Acting DVC has expired and were conducted in his capacity as a senior staff of the Respondent. The Petitioner has not demonstrated how his constitutional rights were violated in relation to the Acting DVC which he stopped holding prior to the date of offence.

Analysis and Determination 65. (a)The three substantial issues for determination is whether the respondent did due diligence to investigate the charges against the petitioner prior to the summary dismissal.(b)The second one is whether the petitioner’s constitutional rights were violated due to the summary dismissal.(c)Did the respondent follow fair procedure to terminate the petitioner summarily?

Issue 1 66. On the issue of whether the respondent conducted investigations to confirm whether there were valid reasons to terminate the petitioner the way they did the petitioner’s termination letter provided no specific reason as to why he was terminated as per the letter dated 12th September 2022.

67. Having said so the show cause letter dated 5th August 2022 showed the charges against the petitioner were an email he sent through his corporate email to Prof Lucy Irungu attaching two memos while the Vice Chancellor was on leave. He was accused of gross misconduct and insubordination and incitement, abuse of office and sabotage. One of the memos referred to a request for petitioner to be allowed to stand in for the Vice Chancellor in her absence.

68. The memos seem to be of personal nature requesting to be appointed as an acting vice chancellor. There is no evidence that the same was circulated to the then Acting Vice Chancellor or other members of staff in order to justify the charge of insubordination, sabotage and incitement. The main misdemeanour would be that he sent an email to the vice chancellor and ignored the acting vice chancellor.

69. The petitioner admitted he sent the email and further admitted he was not trained on the ethics of the university. He withdrew the memos thereafter and tendered an apology. He also committed to adhere to the laid down procedures.

70. The petitioner may have acted unprofessionally by sending an email to the substantive Vice Chancellor while there was an acting Vice chancellor. However, in terms of what constitutes gross misconduct as enumerated in section 44(4) (a-g) of the Employment Act the court by any stretch of imagination finds no justification to warrant a personal email to your team leader to be construed as act of gross misconduct.

71. It is not like he published it to the others and indeed the Vice Chancellor being the team leader could have merely disciplined him and warned him to follow the right protocols.

72. This is as provided in the Human resource policy and procedure manual of the respondent that if an employee is suspected of misconduct, “ The immediate supervisor shall institute an investigation taking into account whether the employee is habitual offender or a first offender or whether there are extenuating circumstances that occasioned commission of such an offence.

73. The court finds there is actually no proof of gross misconduct investigated by the petitioner’s supervisor to have justified as drastic action as summary dismissal.

74. There is no evidence also that the petitioner was a habitual offender but instead he was even appointed as acting DVC in February 2022 only to receive a show cause in August 2022.

75. An employee of whatever calibre and more so such a senior employee who had served the respondent for quite a long period proper investigations must be conducted and valid reasons given before summary dismissal can be effected.

76. In the case of Christoper Kariuki Gikonyo vs Cargo Services Centre E. Africa B U T/a Swissport Cargo Services Kenya 2015 the court held:“Before an employee can be dismissed from employment proper investigation must be carried out, upon such investigations, the employee must be notified of any issues that arise and require his response and once such process is complete can the matter be heard”The court holds the investigations conducted by the petitioner if any and the very generalised reasons given for summary dismissal do not pass the fairness test of substantial justification as will articulated in the case of Walter Ogal Onuro vs Teachers Service Commissions Cause No 955 of 2011 the court held:“for termination to pass the fairness test it ought to be shown that there was not only substantive justification for termination but also procedural fairness.”

Issue 2 77. As to the issue of whether the petitioner’s constitutional rights were violated the court is persuaded by article 50 of the Constitution, which provides for protection of every persons which rights should not be arbitrarily denied. Article 41 also provides right to fair labour practice article 48 provides that every person is ensured of access to justice for all.

78. The court must intervene in disciplinary procedure if the same offends fairness of rules of natural justice and if the same would result in injustice. The petition is justified as the respondent breached provisions of article 41 of the constitution among others already referred therein for summarily dismissing the petitioner without valid reasons.

Issue 3 79. As to the third issue of whether the respondent followed fair procedure in conducting the disciplinary hearing save for not establishing clear reasons of gross misconduct the respondent followed the procedure set out in section 41 of the employment act. The petitioner was served with notice to show cause and invited to a disciplinary hearing on 30th August 2022 and the petitioner was present and was given an opportunity to be represented by a representative of his choice.

80. After the hearing he was found guilty even though the court was not informed if the minutes were availed to the petitioner. Apart from that, the court would hold the respondent followed mandated procedure as provided in section 41 of the Employment Act. It however failed to give valid reasons contrary to section 45 of the Employment Act.

81. Flowing from the pleadings and the submissions of the rival parties the court holds that the petitioner has proved his termination as a professor grade 15 in the school of education was illegal and unlawful. He was merely acting as Deputy Vice Chancellor administration and financé and his term had either expired or just about to expire and so court will not grant prayer A of the petition. Prayer C is also not granted but instead petitioner will be compensated with award for unlawful termination of 8 months equivalent at kshs 416,802x8 = Kshs 3,334,416.

82. The prayers for acting allowance, extraneous allowance, entertainment allowance and leave days are not proved and court would hesitate to grant prayers in abstract. As well, prayers e and f are not legally supported and are declined.

83. Costs of the petition are awarded to the petitioner as well.

DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 23RD DAY OF FEBRUARY, 2024. ANNA NGIBUINI MWAUREJUDGEORDERIn view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159 (2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.A signed copy will be availed to each party upon payment of Court fees.ANNA NGIBUINI MWAUREJUDGE