1.The appellant, Milcah J. Mutwol, filed a statement of claim dated 24th July, 2018. The respondent herein, Moi University, was the respondent. In her claim, the appellant averred that on 4th May, 2016, she was sent on compulsory leave on the basis that her performance “…was dissatisfactory …while it reviewed the availed accounts of 2013/2014 and 2014/2015 financial years.” At the time she served as a Finance Officer. She detailed the sequence of events as follows:(1)On September 1, 2016(after a period of about 4 months, she was issued with a Notice to Show Cause which detailed a total of 19 infractions. She was to respond within 14 days. She did so on September 12, 2017.(2)On September 27, 2016, she was invited to appear before the Human Resource & Governance Committee of the Council onOctober 6, 2016at 10 a.m.(3)The appellant attended the meeting. However, on October 13, 2016, she was placed on suspension on half (½) salary. The suspension was subsequently extended on November 7, 2016.(4)On November 28, 2016the University council informed the appellant that she would be notified of the disciplinary hearing in due course.(5)On December 7, 2016, the Ag. Vice Chancellor issued a notice requiring the appellant to appear before the disciplinary committee which was indefinitely postponed onDecember 19, 2016.(6)On January 20, 2017, she was invited to attend the disciplinary committee on January 27, 2017with “5 novel charges”.(7)The appellant was further invited for hearing on August 1, 2017 and August 31, 2017. She was thereafter unlawfully terminated on July 9, 2018.
2.It was the respondent’s action of terminating the appellant that provoked the suit filed by her at the Employment and Labour Relations Court in which she sought:
3.In a response dated September 18, 2018, the respondent denied having wrongfully and unlawfully terminated the appellant’s services. It maintained that there was both procedural and substantive fairness in the termination of the appellant.
4.The dispute between the appellant and the respondent was heard and determined by Marete, J. who in a judgment dated March 14, 2019rendered himself as follows:
5.It is the above outcome that provoked the appeal filed vide a memorandum of appeal dated June 26, 2019listing 36 grounds of appeal. However, during the plenary hearing on May 18, 2020, Mr. Kigamwa, learned counsel for the appellant, whilst relying on the appellant’s written submissions filed on 30th April, 2020, reduced the grounds into 4 main areas.
6Firstly, in urging grounds 1-7, counsel faulted the respondent for placing the appellant on compulsory leave vide its decision of 4th May, 2016 whilst there was no statutory basis for doing so. In support of this proposition, he relied on the decision of Ezra Chiloba vs. Wafula Wanyonyi Chebukati & 7 others  eKLR in which Radido, J. held that compulsory leave does not exist under the law and can only be invoked if it is expressly provided for in the contract of employment.
7.Secondly, in respect of grounds 8-12, counsel submitted that there was no fair hearing as the appellant attended the meeting of October 6, 2016without a friend or legal representative contrary to section 41 of the Employment Act, 2007. Further, that Section 63 (3) of the University Act places a maximum period of 6 months within which a dispute must be heard and resolved and yet in her case, the respondent took over 2 years to determine the appellant’s fate. In addition, the respondent was faulted as by its letter dated October 13, 2016, it unlawfully used suspension as a form of disciplinary sanction. Counsel posited that the Collective Bargaining Agreement signed on November 14, 2013 did not have a provision for extending a suspension period beyond 21 days. Reliance was placed on the decision of Almond Kibiwott Kutto vs. Masinde Muliro University of Science & Technology  eKLR in which Maureen Onyango, J. held:
8.Thirdly, in urging grounds 13-16, it was contended that there was neither procedural nor substantive fairness as the appellant was not culpable of any wrong doing and the procedure followed therein was unlawful. The decision of Samson Ole Kisirkoi vs. Maasai Mara University & 3 others  eKLR was cited wherein Maureen, J. held:
9.In conclusion, counsel urged us to find that the respondent engaged in unfair labour practices, breached the law and the employment contract by placing the appellant on compulsory leave on May 4, 2016; by denying her the right to be accompanied by a friend or legal representative and finally, in imposing and extending an unlawful suspension. He urged us to order reinstatement of the appellant as 3 years had not lapsed from the date of dismissal. We were also asked to award damages under section 47 of the Employment Act.
10.In response, Learned counsel, Miss Odwa for the respondent maintained that there was procedural fairness in the manner that the appellant was dealt with; that the appellant appeared for the disciplinary hearing with her advocate; that contrary to the appellant’s assertion, the Council of the respondent was fully constituted as at December, 2016; that the delay in finalization of the dispute is partially attributed to the appellant as there are instances when her counsel sought an adjournment to enable him prepare for the hearing and finally, that the appellant should have challenged the decision of the Council by way of an appeal in terms of clause 5.4 of the Collective Bargaining Agreement signed by Kenya University Staff Union (KUSU) and the respondent, an option she waived and instead opted to file suit.
11.On whether there was justification for the action taken by the respondent, counsel pointed out that the appellant, as the supervisor in her department, conceded to the fact that there were Bank accounts that were opened without the requisite approvals; that indeed cheques had been issued which cheques upon presentation were dishonoured by the bank and that all concerned officers, including the Deputy Vice Chancellor were taken through the disciplinary process and terminated. Reliance was placed on several decisions of this Court including Kenya Revenue Authority vs. Reuwel Gutahi & 2 others, Nairobi Civil Appeal No. 66’A’ of 2019, for the proposition that the standard of proof in determining whether termination of employment was justified is on a balance of probability, CFC Stanbic Limited vs. Danson Mwashako Mwakuwona (Mombasa Civil Appeal No. 3 of 2014), for the proposition that lack of diligence on the part of an employee is sufficient cause for dismissal and Kenya Power and Lighting Company Limited vs. Aggrey Lukorito Wasike (Nyeri Civil Appeal No. 79 of 2016), for the holding that:
12.In a brief rejoinder, Mr. Kigamwa pointed out that the appellant was 63 years old and had not attained the retirement age of 65; that she was not notified of the right of appeal; and that section 63(3) of the Universities Act on fair administrative action was not adhered to.
13.We have considered the record, the rival written and oral submissions made before us, the authorities cited and the law. The appeal before us is a first appeal and our mandate as a first appellate court is as set out in Selle v. Associated Motor Boat Co. of Kenya & others  EA 123 wherein it was stated:
14.The undisputed facts of this matter are that the appellant was the respondent’s employee having been employed as a Senior Accountant in the year 2003 and rising to the position of a Finance Officer, upon promotion, on February 10, 2010.
15.The respondent denied having wrongfully or unlawfully terminated the services of the appellant. The respondent contended that it was justified in its actions as the appellant was found guilty of negligence in the performance of her duties and that given the accusations levelled against her for which she failed to exonerate herself, the respondent had lost trust and confidence in her. The respondent gave the sequence of events as follows: on January 6, 2016, the appellant was served with an internal memo raising queries on the accounts for the years 2013/2014 and 2014/2015; the appellant gave a response on 15th January, 2016 which the respondent found to be insufficient; in a memo dated February 9, 2016, and a reminder dated April 12, 2016, the respondent sought from the appellant, an explanation to the issues raised by the audit committee as stated in the internal memo of 6th January, 2016; the appellant requested for more time to be able to retrieve documents from the archives; on May 4, 2016, a Special Council meeting reviewed the audited accounts for the financial years 2013/2014 and 2014/2015 vis-à-vis the appellant’s response; the respondent found the appellant’s response to be unsatisfactory following which the appellant was sent on compulsory leave on May 4, 2016 in order to pave way for further investigations; on 1st September, 2016, the appellant was served with a Notice to Show Cause following a special meeting of the Council of August 30, 2016; there were 19 accusations levelled against the appellant who was to respond to the issues raised within 14 days; the appellant responded to the NTSC on 19th September, 2016; the appellant was subsequently invited to appear before a disciplinary committee on October 6, 2016; the appellant appeared before the disciplinary committee which resolved that the appellant be suspended with effect from 13th October, 2016, as per Clause 5.2 of the C.B.A between Moi University and KUSU; the suspension was extended on November 7, 2016 and on account of the suspension, the appellant was put on half-pay.
16.According to the appellant, the invitation to the meeting of 6th October, 2016, the suspension of October 13, 2016 and the extension of the suspension on November 7, 2016 were unlawful, unfair and amounted to unfair labour practices. The appellant contended that suspension was not part of the prescribed employment sanction, and finally that there was breach of Clauses 52 and 53 of the Collective Bargaining Agreement signed on November 14, 2013 as it did not provide for extension of suspension period beyond 21 days.
17.The appellant further contended that Section 41 of the Employment Act and Statute XVII of the Statute of Moi University 2013 was flouted in the meeting of 6th October, 2016 as she was not represented by a person of her choice and that Section 63(3) of the Universities Act provides that a disciplinary process had to be completed within 6 months.
18.What is the law regarding the issue of compulsory leave? The Employment Act, 2007 does not define compulsory leave, otherwise referred to as “administrative leave” in some foreign jurisdictions.
19.The existing jurisprudence from the local courts on this subject is diverse. Whereas some judges have taken the view that compulsory leave is necessary in order to allow for investigations to be carried out in respect of any alleged misconduct on the part of an employee, other judges have equated compulsory leave to suspension and interdiction, especially where it does not have contractual authority or any statutory underpinning. In the circumstances therefore, such compulsory leave has been said to amount to an unfair labour practice.
21.A similar position was taken by Onyango, J. in Thomson Kerongo & 2 others v James Omariba Nyaoga & 3 others  eKLR where she held thus:
23.We associate ourselves with the position taken by Onyango, J. in the Thomson Kerongo case (supra). In our view, we are not persuaded that there must be provision in the contract of employment providing for compulsory leave before an employee can be sent on such leave. The flip side of it is that there is no law that prohibits the placement of an employee on compulsory leave. It is our further view that it was necessary to have the appellant sent on compulsory leave to enable the respondent to carry out meaningful investigation. It is not possible for an employer to carry out effective investigations against an employee who, in spite of accusations of wrong doing, continues to occupy her/his office. In any case, looking at the circumstances of this matter, the appellant was informed and understood that she was being placed on compulsory leave to allow for investigations and she was given the opportunity to show cause why disciplinary action should not be taken against her. We do not find any good grounds to impugn the decision of the respondent which in our view was fair, reasonable and justifiable.
24.On the issue of alleged unlawful suspension, we do not agree with the appellant that her suspension and the subsequent extension of her suspension were unlawful. The import of suspending an employee against whom an allegation of a work-related misconduct may have arisen was aptly put forth by Lord Denning MR, in the English case of Lewis v Heffer and others  3 All ER 354 (CA) at 364, thus:
25.Halsbury’s Laws of England, 3rd Edition, Volume 25 at paragraph 989 (page 518) states as follows:
26.In Member of the Executive Council for Education, North West Provincial Government v Gradwell (2012) 33 ILJ 2033 (LAC),the South Africa Labour Appeals Court dealt with the question of the purpose of precautionary suspension and said:
27.In the Canadian case of Cabiakman v. Industrial Alliance Life Insurance Co., 2004 SCC 55,  3 S.C.R. 195, where an employee had been suspended by his employer without pay pending resolution of the charge of conspiracy to extort money from his securities broker, the suspension was found to have been justified, as the employer had imposed it for legitimate business reasons relating to the company’s image and reputation. The Supreme Court laid down several factors that can guide the courts in determining whether an employer was justified in deciding to temporarily suspend an employee at paragraph 62 of its judgment thus:
28.We respectfully agree with the views expressed by the Supreme Court of Canada. In the present case, the suspension of the appellant had contractual underpinning on Clause 5.2 of the Collective Bargaining Agreement between KUSU and the respondent. The respondent submitted that several bank accounts had been opened without the necessary approval under the watch of the appellant. Several cheques issued under the appellant’s watch were dishonoured upon presentation for payment. It is our view that such acts or omissions reflect badly on the respondent and had the potential to hurt its business name and reputation as an institution of higher learning. With this in mind, we are of the view that the suspension of the appellant was necessary so as to protect the legitimate business interests of the respondent. The actions by the respondent were not devoid of good faith on its part. We take note that other employees of the respondent including the Deputy Vice Chancellor were also subjected to the disciplinary process and terminated. The respondent did not therefore single out the appellant, neither were its actions marred with any bad faith nor can the respondent be said to have acted unfairly against the appellant. The suspension of the appellant was therefore lawful and, in any case, what the appellant seems to be taking issue with in this appeal is not her suspension but the prolonged extension of her suspension.
29.In the Canadian case of Potterv.New Brunswick Legal Aid Services Commission, 2015 SCC 10,  1 S.C.R.500, an employee had been placed on indefinite suspension. The Supreme Court held, inter alia, that a prolonged or indefinite suspension could amount to constructive dismissal of an employee.
30.Such suspension therefore should be definite and ought not to be for a lengthy period of time. In any case, the essence of suspension is to allow for investigations into an alleged misconduct by an employee. In the present case, it is our view that there is no law or regulation that outlawed extension of the suspension period. To this extent, we are not persuaded by the decision of Maureen Onyango, J. in Almond Kibiwott Kutto vs. Masinde Muliro University of Science & Technology (supra) that the suspension cannot be extended unless and until the respective union’s consent is obtained.
31.It is true as contended by the appellant that the Council’s term came to an end in February, 2017 before the conclusion of the dispute and a new Council was put in place in March, 2017, following which a hearing took place on 27th January, 2018 (although this is wrongly stated as 27th January, 2017). The appellant presented her case on 13th April, 2018 together with her witnesses, in the presence of her advocate and a Union representative. Thereafter, the appellant’s counsel sought an adjournment to enable him file submissions. The Council acceded to the appellant’s counsel’s request. Subsequently, the appellant was found guilty on July 9, 2018 and her services terminated. In our view, the appellant contributed to the delay in the determination of the complaints against her as she sought several adjournments during the hearing. In particular, she sought for extension of time when served with the Notice to Show Cause on January 27, 2017 and her counsel sought an adjournment to enable him fully prepare for his brief. Additionally, the appellant’s counsel failed to adhere to the timelines for filing of submissions thus necessitating further delays. We are in agreement that the appellant substantially contributed to the delay in the determination of her matter as demonstrated above. She cannot therefore be heard to complain that the determination of the dispute took a period of more than 6 months contrary to Section 63(3) of the University’s Act when she herself contributed to the delay. We also appreciate that once the life of the Council that was initially seized of the matter came to an end, it took time before a new Council was constituted. This also caused further delay.
32.As to the procedural fairness, we find that the respondent essentially complied with the procedure leading to the termination of the appellant. The appellant was served with a Notice to Show Cause and given time to respond. The appellant sought for extension of time and an extension was granted. She appeared before the disciplinary committee and was thereafter suspended. She took part in the hearing of the matter in presence of her lawyer and a Union representative. The respondent cannot therefore be said to have failed the test of procedural fairness.
33.As regards the appellant’s contention of wrongful termination, we find that during the hearings, the appellant was taken through the allegations made against her and the respondent found her guilty of negligence in the performance of her duties. In our view, the termination was well founded and we are in agreement with the trial Judge when he came to the conclusion that the appellant //**“… fell short of the requirements of Section 47(5) of the Employment Act, 2007 which comes out as follows:
34.The respondent justified the appellant’s dismissal on account of her dereliction of duty.
35.On the competency of the suit, the respondent contended that the appellant had failed to exhaust all the chances for redress as set out in Clause 5.4(a) of the CBA between Moi University and KUSU. Clause 5.4 of the CBA between the respondent and KUSU provides as follows:
36.The appellant’s rejoinder on the competence of the suit before the respondent was that she was not informed that she could file an appeal before the Appeals Board of the Council.
37.In our view, the avenue available to the appellant is clearly spelt-out. She ought to have appealed to the Chairman of the Council who would then have caused the Appeals Board of the Council to convene within 21 days. She failed to do so. Her contention that she ought to have been advised of this procedure is misplaced.
38.We believe we have said enough to show that this appeal is without merit. It is hereby dismissed with costs to the respondent.