Gerald Baraza

• NO REMEDY FOR SACKED UNIVERSITY LECTURERS !

  Posted: August 5, 2008, 7:51 am

  
  By Monica Achode - Advocate
  
  August, 2008
  
  Nairobi
  
  Republic V The Vice Chancellor Jomo Kenyatta University of
  Agriculture and Technology [2008] eKLR (www.kenyalaw.org
  
  )
  
  High Court at Nairobi
  
  J.G. Nyamu (J)
  
  July 25, 2008
  
  The remedy of judicial review is concerned with reviewing not the
  merits of a decision in respect of which an application for judicial
  review is made, but the decision - making process itself
  
  The High Court on the 25th of July 2008 dismissed an application on
  judicial review brought against the Vice Chancellor of Jomo Kenyatta
  University of Agriculture and Technology (JKUAT). The applicants, Dr
  Cecilia Mwathi and Mr Moses Muchina, had come to High Court seeking
  orders to quash the decision by the Vice Chancellor made on the 25th
  October, 2006 terminating their services and employment as academic
  staff members of the University. They also sought orders compelling
  the Vice Chancellor to reinstate and or recognize the applicants as
  members of the academic staff of the said University.
  
  The application was based on the grounds that the Vice Chancellor
  acted improperly and in abuse of his powers. The applicants further
  claimed that the decision was in breach of the rule of law, fairness
  and natural justice as well as the rules of the code of conduct and
  ethics. It was the applicants' contention that the decision was
  oppressive and discriminatory. The applicants claimed that the
  respondent had no powers to hire and fire University staff as this
  power was vested in the University Council under sections 16 and 20
  of the JKUAT Act No 8 of 1994 and the attendant University statutes.
  The application was opposed by the Vice Chancellor who also happened
  to be a member of the Inter-Public Universities Councils
  Consultative Forum (IPUCCF).
  
  Strike Notice
  
  The Applicants had been employed as lecturers by the University.
  They also held the positions of the Chairman and Secretary of
  University Academic Staff Union (UASU) respectively, of JKUAT
  Chapter. The Applicant together with other officials of UASU had
  issued the Minister for Labour and Human Resource Development with a
  21 days notice to strike. The said Minister tried to intervene and
  UASU vowed to go on with the strike. On 18th October, 2006, the
  Applicants and other UASU officials of JKUAT Chapter called a meeting
  to plan the launch of the strike. Contemporaneously, the Industrial
  Court issued an order restraining the imminent strike or any
  interruption of services by UASU and its members.
  
  On the said 18th October, 2006, the JKUAT University Council held a
  meeting and resolved that the respondent would take disciplinary
  action against any UASU member that participated in the impending
  strike. The Applicants encouraged their members to go on strike and
  on 23rd October, 2006, they participated in the unlawful strike. On
  31st January, 2007 the JKUAT Council Academic staff Disciplinary
  committee met and ratified the termination of the applicants
  employment. It was for this reason that the applicants brought the
  application to the courts seeking judicial review over the decision.
  
  It was the applicants' claim that the terms of service for Academic
  Staff established a statutory and contractual relationship between
  themselves and the University. According to them, the letter of
  termination did not quote under which councils meeting the
  disciplinary action against them was discussed and passed after
  proper deliberations. Their argument was that the procedure: to
  appear and be heard by the Council; to call and examine witnesses;
  and to appeal to a full Council, was not followed by the Vice
  Chancellor.
  
  The Vice Chancellor in opposition to the application argued that the
  orders sought by the applicants were directed to the wrong party as
  neither JKUAT nor its Council was enjoined as parties to the suit. He
  stated that it was only the Council that had the mandate to dismiss
  the applicants. The Vice Chancellor maintained that the notice of
  termination was properly served and although the applicants had the
  right to appeal against their termination from employment they chose
  not to do so. The termination was later ratified by the University
  Council after the applicants waived their right to appeal. As such
  they were barred from alleging that they had not been given an
  opportunity to be heard.
  
  Court Analysis
  
  The Court considered the arguments put forth both by the applicants
  and the respondent and felt that the issues before the court were
  threefold: whether the respondent acted improperly and in abuse of
  his power in terminating the applicants services as lecturers;
  whether the decision of the respondent to terminate applicants
  services had any basis in law and if it was oppressive and
  discriminatory; and whether judicial review remedies were the most
  efficacious for the applicants in the circumstances.
  
  It was clear that the applicants had been employed by JKUAT as
  lecturers. It was also apparent from the provisions of the said Act
  that the University Council was the supreme body in all maters of
  governance, control and administration of the University. The
  applicants conceded that they were appointed by the University
  Council, not the Vice Chancellor, in their respective positions and
  that the university Council had powers to remove them from the
  office. They failed to discharge the onus of demonstrating that the
  respondent had abused his power in terminating them.
  
  Justice Nyamu noted that the applicants admitted that they attended
  the Council meeting of 18th October, 2006. It was therefore not true
  that they were never given a chance to be heard before their
  termination. A public body or a local authority while formulating a
  decision in circumstances to which the principles of natural justice
  apply did not need to observe the strict procedures of a court of
  law. The court found that there had been no abuse of power by the
  respondent who actually followed the procedure for removal from
  office of academic members of staff.
  
  The Court appreciated the fact that the statutes allowed the
  dismissal of academic staff, and that the general principles of the
  law of master and servant as applied in employment contracts, applied
  to lecturers. It was of the opinion that the remedy of judicial review
  was concerned with reviewing not the merits of the decision in respect
  of which the application for judicial review was made, but the
  decision - making process itself. The case of Republic V Judicial
  Service Commission Ex-Parte Pareno, [2004] Klr 203 At P.204 was cited
  in support of that position.
  
  Justice Nyamu was of the opinion that the court's function was to
  decide on whether the process leading to termination was proper and
  not to adjudicate on the merit of the same since it was not in
  dispute that the applicants could be removed from office. From the
  foregoing principles the court could not therefore substitute the
  termination for anything else for example reinstatement because the
  court would be usurping the power clearly vested in the University
  Council and or the Vice Chancellor. It was for the above reasons that
  the court found the application lacking in merit and dismissed it with
  costs to the respondent.
  
  Download Case
  http://kenyalaw.org/Downloads_FreeCases/Republic_v_VC_JKUAT.pdf>

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