[2024] KEELRC 13241 (KLR)

Omiti v Catholic University of Eastern Africa (CUEA) & another (Cause 627 of 2019) [2024] KEELRC 13241 (KLR) (27 November 2024) (Judgment)

Neutral citation: [2024] KEELRC 13241 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause 627 of 2019

B Ongaya, J

November 27, 2024

Between

Dr. John Moturi Omiti

Claimant

and

Catholic University of Eastern Africa (CUEA)

1st Respondent

Vice Chancellor of Catholic University of Eastern Africa

2nd Respondent

Judgment

1. The claimant filed the statement of claim dated 17. 10. 2019 through Ondieki & Ondieki Advocates. He prays for judgment against the respondents for:a.An order of declaration that the claimant be reinstated unconditionally to employment.b.A declaration that the claimant suffered unfair and unlawful termination by the respondents, which cannot be justified in a democratic society.c.Damages for wrongful and unlawful termination.d.Maximum three (3) years compensation for wrongful termination.e.Costs of this suit.f.Any other relief that the Court may determine appropriate in this circumstance.

2. The claimant averred that in January 2019, he applied for the position of senior lecturer in economics at the Catholic University of Eastern Africa (CUEA) whereupon he was shortlisted and invited for interviewing. The 1st respondent later offered him employment on 01. 04. 2019 and he ably discharged teaching responsibilities at the University’s Faculty of Economics between May to July 2019. He was to be remunerated Kshs. 156,136/= per month excluding benefits and he reported to the then Head of Department (HoD), Economics, Professor Joseph Ongeri.

3. It was the claimant’s averment that the courses he taught have been approved by the Commission of University Education. That he set examinations which the students sat for between 12th and 24th August 2019. The examination papers were then marked and presented to the Departmental and Faculty Academic Board on 28th and 29th August 2019 respectively, and thereafter adopted without any variation and/or changes.

4. The claimant’s case was that contrary to legitimate expectation, the 2nd respondent issued him a termination of probation letter dated 19. 08. 2019. The same was a premeditated decision without any administrative evidence of fairness and he was not given any notice and reasons. He averred that due process prescribes that he ought to have been evaluated after completing the process of setting, moderating, administering and marking examinations, that is, after 29. 08. 2019. The respondents should have informed him, during moderation, of any improper, incorrect and unsuitable exam question he had set as that is when lecturers submit draft questions. However, the same was not brought to his attention during deliberation on suitability of the draft questions set by the lecturers.

5. The claimant pleaded that he was aware the University’s Deputy Vice-Chancellor had recommended him on merit as the HoD of Economics. However, contrary to the recommended expectation and to his prejudice, the 2nd respondent went on to appoint one Dr. Gabriel Kirori to the position. The said appointee, who was made the claimant’s supervisor and was of the same rank as the claimant. The said appointment was irregular and done in substitution of the claimant who was the proposed candidate for the position of HoD of Economics under the following considerations:i.The claimant was the most qualified individual in contrast with other fellow lecturers within the department.ii.The claimant has extensive academic and research experience compared to his fellow lecturers within the department.iii.The claimant has published more works that are scholarly.iv.The claimant has worked with determination and commitment in accordance to the university regulations and requirements.

6. The claimant further averred that the appointed Dr. Kirori, made creations based on deceit and fabrications that the claimant had set substandard examinations. This was notwithstanding that the Department Moderation Committee approved the examinations the claimant had set without raising any issue prior to the students sitting for the examinations. That to justify his falsehood, Dr. Kirori came up with the theory that determination of the claimant’s examinations being substandard was sourced from external reviews. The claimant was not furnished with any report on the issues raised by the external reviewers to enable him respond, despite requesting for the alleged report. That the respondents’ main objective was to unjustifiably terminate his contract of service.

7. The claimant’s further case was that the respondents did not sufficiently inform him the reasons for terminating his services. The letter that purportedly informed him of his examinations being substandard does not substantiate the specific course and questions found to be substandard as per the external review. Furthermore, he was never evaluated during probation in pursuance of the prevailing university human resource procedures and policies. That the University’s HR Policy Manual prescribes that upon receipt of the HoD’s performance appraisal report of an employee on probation, the staff evaluation committee may, if the employee services were evaluated as unsatisfactory extend the employee’s probation for a period not exceeding six (6) months. The decision to terminate his employment was therefore reached in defiance of the University’s HR Policy and he has consequently suffered great economic loss and damage.

8. The respondents’ response to memorandum of claim dated 03. 02. 2020 was filed through KWEW LLP Advocates. They pray that the suit herein be dismissed with costs to the respondents. Their case is as follows:a.The claimant’s claim is bad in law as it seeks for this Court to restrain an act that already happened and court orders cannot be issued in vain. The claimant has not been in the 1st respondent’s employment since 19. 08. 2019 and the respondents have already hired another qualified lecturer to fill the position of senior lecturer in economics.b.The claim is also premature as the claimant did not comply with all the 1st respondent’s internal disciplinary procedures including appealing to the University Council; as provided in sections 1. 11 and 14. 6.6 of the respondent’s HR Policy Manual.c.The claimant has failed to disclose to this Court that when he appeared for the interview for the position of senior lecturer in economics, he misled the interviewing panel into believing he had all the required qualifications, which he did not have. That the respondents later discovered that the claimant actually had a PhD in Agricultural Economics and not the required PhD degree in Economics. It was based on these misrepresentations that the University issued the claimant a provisional appointment as a senior lecturer in the department of economics for him to serve a six-month probation period. However, the claimant demonstrated poor performance during the probation period leading to the respondents discovering that he did not have the required qualifications. The University thus found the claimant’s probation to be unsuccessful and communicated the same to him.d.The provisional appointment of the claimant was only on probationary terms and was yet to be confirmed as permanent employment.

9. The parties called witnesses and also filed their respective written submissions.

10. The Court has considered all material on record and returns that the termination of the probationary appointment has not been shown to be unfair or wanting in law and contract. While making that finding the Court finds as follows:a.The evidence is that the claimant was required to teach in the Department of Economics and indeed, he had a doctoral degree in Agricultural Economics and not Economics.b.While the claimant may have a grievance in the manner he was terminated, it is undisputed that he failed to invoke the internal appeals procedure. By that finding it appears that the suit was premature and it should be open to the claimant to invoke that internal procedure. In view of that internal procedure that is available, it appears premature for the Court to delve into the merits of the grievances surrounding the termination of the probationary service. The suit was chained with want of exhaustion of internal dispute resolution procedure and the respondent’s submissions in that respect are upheld as consistent with Article 159(2) (c) that recognises reconciliation, mediation and traditional dispute resolution mechanisms.c.As urged for the respondent, section 42 of the Employment Act 2007 applied and the applicant has not shown that the respondent breached any of the minimum statutory terms and conditions on termination of a probationary service. The suit will fail.d.Accordingly, all the reliefs sought will fail as unjustified. With due diligence, the respondent should have considered the correct doctoral qualifications held by the claimant as at appointment. In the circumstances each party to bear own costs.In conclusion judgment is hereby entered for the respondent against the claimant for dismissal of the suit with orders each party to bear own costs of the proceedings.

SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS WEDNESDAY 27THNOVEMBER 2024. BYRAM ONGAYAPRINCIPAL JUDGE