Court declines to reinstate former Turkana university college principal

The Employment and Labour Relations Court in Nakuru has declined to issue orders reinstating former Turkana University College Principal, Professor Thomas Akuja.

Prof Akuja had moved to Court on January 25, 2021 through the firm of Matunda and Company Advocates, seeking several orders among them directing the Turkana University Council to unconditionally reinstate him to employment as the Principal of Turkana University College without any loss of benefits, seniority and emoluments.

In a ruling delivered virtually by Justice Hellen Wasilwa, the Court ruled that reinstatement is not the only remedy in a case of wrongful dismissal.

“In any case, the applicant can be compensated in any other way, including monetary if the Court finally finds his termination unfair and unjustified,” the Court ruled.

The Court, however, noted that there were some flaws in the way the disciplinary process was conducted having lasted 11 months instead of six months.

The Judge added that the University Council had failed to supply, Prof Akuja, with some documents requested before the disciplinary hearing which showed flaws in the disciplinary process.

“That notwithstanding, that would not be a good reason to have the applicant reinstated.  This is so because reinstatement is not the only remedy in a case of a wrongful dismissal. In any case, the applicant can be compensated in any other way, including monetary if Court finally finds his termination unfair and unjustified,” the Court ruled.

Further, the Court ruled that the prayer to bar the University Council from filling up the vacancy occupied by the applicant was also not tenable.

“Given that we are dealing with a learning institution and we cannot hold it at ransom not to recruit a Vice Chancellor and if the claimant’s case is proved, he can be compensated in monetary terms,” the Court ruled.

The Judge said, “the respondent submitted that this Court has been called upon to determine whether it should interfere with the respondent’s internal disciplinary process that are prima facie fair, secondly, whether a party who voluntarily forfeited his right to be heard under employment Act can challenge the said decision and finally whether public institutions should be held at ransom by employees’ belligerence.”

Prof Akuja had also sought orders, ‘That pending the hearing and determination of this Claim, the Court be pleased to issue an order directing the respondent to unconditionally reinstate the claimant to employment as the Principal of Turkana University College without any loss of benefits, seniority and emoluments.’

Prof Akuja also sought orders restraining the Turkana University College Council and/or any other person or entity whether by themselves or by their agents from accepting any applications and subsequently recruiting and substantively filling the position of the Principal of Turkana University College before the inter-parties hearing and determination of the Application.

He also sought court orders ‘That pending the hearing and determination of this claim, the court be pleased to issue orders restraining the respondent and/or any other person or entity whether by themselves or by their agents from accepting any applications and subsequently recruiting and substantively filling the position of the Principal of Turkana University College.’

According to Judge Wasilwa, the Court had been called upon to determine whether it should interfere with the respondent’s internal disciplinary process that are prima facie fair.

Secondly, whether a party who voluntarily forfeited his right to be heard under the employment Act can challenge the said decision and finally whether public institutions should be held at ransom by employees’ belligerence.

The University Council in August 2020 appointed, Prof George Chemining’wa, as the Varsity Principal on a six months’ renewable contract.

  

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