[2015] KEELRC 478 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

CAUSE NO 1789 OF 2013

REBECCA ANN MAINA............................................................................1ST CLAIMANT

MONICA NYAMBURA WAINAINA.............................................................2ND CLAIMANT

JOSHUA PATRICK MACHARIA................................................................3RD CLAIMANT

VERSUS

JOMO KENYATTA UNIVERSITY OF AGRICULTURE AND TECHNOLOGY.....RESPONDENT

RULING

Introduction

1. On 6th November 2013, the Claimants came before me seeking orders to restrain the Respondent from subjecting them to a disciplinary process. The Claimants' application was based on the ground that the disciplinary process was unlawful. After hearing submissions from both parties I allowed the disciplinary process to proceed but set the following parameters for its conduct:

That the Respondent shall prefer against the Claimants charges that are clear;

That the Respondent shall afford the Claimants sufficient time to prepare their defence;

That the Respondent shall supply the Claimants documents in its possession which will assist them in preparing their defence. The Claimants shall request to be supplied with specific documents;

That the Respondent shall permit the Claimants to call witnesses to buttress their defence;

That in the intervening period, the Respondent must not act in any manner that may be construed as harassment to the Claimants.

2. I issued these orders on 5th February 2014 but owing to disagreement between the parties on the form of the court order, the disciplinary process did not take off. The order was finally sealed by the Court on 12th May 2014 but for some reason, the disciplinary process still did not commence and by letter dated 19th May 2014, the Respondent's Counsel postponed the disciplinary hearing until further notice.

3. On 8th September 2014, the Respondent's Counsel forwarded documents that would be the subject of the disciplinary hearing to the Claimants' Counsel and from there matters went quiet until 17th June 2015 when the Claimants were invited to a disciplinary hearing scheduled for 26th June 2015.

4. The Claimants took the view that there had been inordinate delay in proceeding with and concluding the disciplinary process. They therefore moved to Court on 23rd June 2015 seeking to bar the Respondent from subjecting them to the disciplinary process on the ground that the delay had rendered the proceedings unlawful and unfair. The matter went before my sister Wasilwa J who granted interim orders and directed that the matter be heard before me inter partes.

The Claimants' Notice of Motion

5. The Claimants' objection to the disciplinary proceedings is contained in an application brought by Notice of Motion dated 22nd June 2015 and amended on 11th August 2015. The application is based on the following grounds:

That the Disciplinary Committee lacks jurisdiction to discipline the Claimants after delaying in doing so for one year and one month;

That Section 63 (3) of the Universities Act mandates that disciplinary cases be resolved within 6 months of commencement;

That the Respondent commenced disciplinary proceedings against the Claimants on 1st November 2013;

That on 5th February 2014, this Court laid down parameters within which the disciplinary proceedings were to be conducted;

That soon thereafter, a dispute arose as to the form of the order which should issue and the Court formulated order was sealed on 12th May 2014; the Respondent failed to exercise the duty to discipline the Claimants within 6 months as mandated by the Universities Act, 2012; the consequence is that the right not to be disciplined vested in the Claimants after expiration of that period;

That on 17th June 2015, the Respondent invited the Claimants to appear before the Disciplinary Committee on 26th June 2015; more than one year after the disciplinary parameters were formulated by the Court;

That by operation of Section 63(3) of the Universities Act, the Respondent forfeited its power to discipline the Claimants on 12th November 2014;

That the intended disciplining of the Claimants is illegal;

That if the disciplinary process takes place, the Claimants' rights of access to the Court to enforce their rights under Section 63 of the Universities Act not to be discipled after 6 months will be rendered nugatory;

That it is in the interest of justice that the orders sought be granted.

6. In a supporting affidavit sworn on 22nd June 2015 and a supplementary affidavit sworn on 6th August 2015, the 1st Claimant depones that she and her co-Claimants are apprehensive that the Respondent's conduct in this matter exposes a hostile agenda to discipline them irregularly.

The Respondent's Reply

7. In a replying affidavit sworn by the Respondent's Chief Legal Officer, Vivian Nyambura on 28th July 2015, the Claimants' assertion that there was inordinate delay in concluding their disciplinary case is denied. Nyambura depones that Section 63 of the Universities Act relates to fair administrative action and is not applicable to the Claimants' disciplinary hearing. She adds that internal disciplinary hearings are conducted by the Respondent's Management Board under Section 43 of the Universities Act.

8. At any rate, any delay was occasioned by the Claimants themselves. In this regard, the Respondent holds that the Claimants have deliberately avoided discipline by engaging in unnecessary objections and court battles. It is therefore unreasonable for them to claim that by the delay in concluding the disciplinary process, they have acquired a right not to be disciplined.

Determination

9. The issue for determination in this application is whether there has been inordinate delay in concluding the disciplinary processes against the Claimants and whether that delay operates as a waiver of the Respondent's right to discipline the Claimants.

10. From the record, there was obviously a sharp disagreement on the form of the orders of this Court issued on 5th February 2014. This matter was however put to rest when the extracted order was sealed by the Deputy Registrar of this Court on 12th May 2014. In making its decision on the matter now before it the Court will therefore discount the period prior to the date when the order was sealed.

11. After 12th May 2014, the following happened:

a) On 14th May 2014, the Claimants' Counsel wrote to the Respondent protesting against disciplinary hearing summons issued to the Claimants on 9th May 2014 for a hearing on 20th May 2014. The Claimant's Counsel served the sealed order on the Respondent on the same day;

On 14th May 2014, Counsel for the Respondent wrote to the Claimant's Counsel denying an alleged breach of the court order and asking that the Claimants comply with the disciplinary process;

By letter dated 20th May 2014, the Claimant's asked to be supplied with documents and witness statements. They also also asked that the disciplinary hearing scheduled for 20th May 2014 be put on hold pending preparations and that the Acting Deputy Vice Chancellor withdraws from sitting in the Disciplinary Committee;

On 19th May 2014, the Respondent's Counsel wrote to the Claimants' Counsel indicating that the disciplinary hearing had been postponed until further notice;

On 8th September 2014, the Respondent's Counsel forwarded documents to be used at the disciplinary hearing.

12. Thereafter, matters went quiet until 17th June 2015 when the Claimants were summoned for a disciplinary hearing on 26th June 2015 giving rise to the dispute now before the Court.

13. The question then is whether the delay occasioned in the conduct and conclusion of the disciplinary cases facing the Claimants was such as to render the entire process fatally defective and therefore unlawful.

14. The Court was referred to Section 63 of the Universities Act, 2012 which provides as follows:

63. (1) In the performance of its functions, a University Council shall uphold the rights of any person who is likely to be affected, and shall-

inform the person concerned of the nature of the allegations made against that person;

afford that person adequate time to prepare and present a defence; and

afford the person the opportunity of being heard in person.

A university council may act on general evidence the character or conduct of the person concerned and shall not be bound by the rules of evidence as set out in the Evidence Act.

A university council shall expeditiously dispose of all matters before it and in any event, within six months.(Emphasis added)

No person having a personal interest or outcome in any matter before a university council shall sit as a member of the university or committee hearing the matter.

15. It was submitted on behalf of the Claimants that because the disciplinary process had not been completed within the six months' time line set under Section 63(3) of the Universities Act, the Respondent's right to discipline the Claimants had been extinguished.

16. In reply, the Respondent submitted that this provision does not apply to disciplinary action facing university employees. Rather, it applies to administrative action taken by a university council in discharging its public mandate. Further, the disciplinary proceedings facing the Claimants who hold non-teaching positions were not being conducted by the University Council but by a Staff Disciplinary Committee of the Management Board.

17. Section 35(1) (a) of the Universities Act provides that the University Council is responsible for employing staff. It seems to me therefore that when the Staff Disciplinary Committee of the Management Board engages in employee disciplinary processes, it exercises delegated authority from the University Council. It cannot therefore be said that the standards set for the University Council under Section 63 do not apply to organs exercising delegated authority. The logical conclusion is that the conduct of the disciplinary cases facing the Claimants ought to have observed the time line set under Section 63(3).

18. The Respondent's Counsel reminded the Court of its earlier finding that disciplinary action against an employee does not constitute administrative action as defined in Article 47 of the Constitution. I still hold this view because in my understanding, Article 47 refers to public bodies exercising their coercive power in the domain of public law and not their rights as employers. To hold otherwise would be to elevate the rights of public sector employees above those of their private sector counter parts.

19. This does not however take away the duty of every employer to handle their employees lawfully and procedurally. In this regard, Section 63(3) of the Universities Act provides a mandatory practice for university councils in dealing with both their external and internal publics. These internal publics would include employees of the university who are by law employed by the council.

20. While quashing disciplinary proceedings on the ground of delay, the Court in the Indian case of P.V Mahedevan v M.D; Tamil Nadu Housing Board (2005) 6 SCC 636 rendered itself as follows:

“The protracted disciplinary inquiry against a government employee, should, therefore be avoided not only in the interests of the government employee but in the public interest and also in the interests of inspiring confidence in the minds of government employees.”

21. In disciplining employees, universities covered under the Universities Act must not only observe the rules of natural justice generally but must also adhere to the statutory requirements under the Act.

22. Natural justice itself demands that disciplinary proceedings are finalised in an expeditious manner. In State of Andhra Pradesh v N. Radhakishan, (1998) 4 SCC 154it was held that delay defeats justice and unless there is proper explanation for the delay, the Court should intervene to save the employee from the ensuing jeopardy.

23. In my view, to have disciplinary proceedings hanging over the head of an employee for close to a year much like the sword of Damocles or the tongue of an unforgiving spouse, amounts to an unfair labour practice within the meaning of Article 41(1) of the Constitution. Disciplinary proceedings should not be allowed to persist so as to acquire the character of an employer's core business. They must be dealt with expeditiously to allow both the employer and the employee to move on.

24. This Court finds no reason for the extra ordinary delay in the conduct and conclusion of the disciplinary proceedings facing the Claimants and for the foregoing reasons, the proceedings are hereby quashed. The result is that the Respondent's right to discipline the Claimants on account of the charges forming the subject matter of the aforesaid proceedings is conclusively extinguished.

23. The Claimants will have the costs of this application.

24. It is so ordered.

DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 30TH DAY OF SEPTEMBER 2015

LINNET NDOLO

JUDGE

Appearance:

Dr. Kamau Kuria for the Claimants

Miss Oyombe for the Respondent