Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No. 1 of 2014· [2015] KECA 235 (KLR)

Maseno University v Universities Academic Staff Union [2015] KECA 235 (KLR)

Court of Appeal of Kenya
6 November 2015
WKW. KaranjaSKS. ole KantaiDavid Kenani MaragaD. K. Maraga
11,865 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~47 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal upheld compensation for Maseno University lecturers unfairly dismissed after a 2006 strike, but ruled they could not be paid terminal benefits twice.

What this practically means

#

Executive summary

#
The Court of Appeal at Kisumu (Karanja, Kantai and Maraga JJ.A) heard Maseno University's appeal against the Industrial Court's finding that five lecturers were unlawfully dismissed for their participation in the 2006 university lecturers' strike, together with UASU's cross-appeal. Karanja JA wrote the leading judgment, holding that the trial Judge grossly misdirected herself by applying unratified ILO Convention 158, the ILO Committee of Experts Report, the ILO Freedom of Association Digest and Article 50 of the 2010 Constitution to a dispute whose cause of action arose before those instruments bound Kenya. The applicable law was the repealed Employment Act (Cap 226) and the repealed Trade Disputes Act, under which the Minister for Labour had power under Section 27(2)(c) to declare a public-sector strike unlawful. However, the majority agreed with the trial court that the terminations were unjustified and unfair because the disciplinary proceedings were precipitated by the strike, some claimants were never heard, and appeals were ignored. The 12 months' compensation awards and certificates of service were affirmed, but the terminal benefits awards (15 days' pay per year worked) were set aside as those dues had already been paid, which would otherwise amount to unjust enrichment. The cross-appeal, which asserted that only the University Council could terminate senior staff and sought reinstatement and additional benefits, was dismissed in its entirety. Kantai JA concurred; Maraga JA dissented, holding the strike illegal and all awards unsustainable. Each party was ordered to bear its own costs.

Key legal issues

#
01

Applicable law to the dispute

Holding

The learned Judge erred in relying on unratified ILO Convention 158, the ILO Committee of Experts Report, the ILO Digest and Article 50 of the 2010 Constitution instead of the repealed Employment Act (Cap 226) and repealed Trade Disputes Act which governed the dispute

Reasoning

The terminations occurred between November 2006 and February 2007, before the 2010 Constitution and the 2007 employment statutes commenced. Under clause 4 of the Fifth Schedule of the Labour Relations Act, pre-existing matters were to be determined under the repealed Trade Disputes Act. Unratified conventions could have only persuasive value and the Judge could not abandon domestic statutes at will. This was a gross misdirection.

p. 12
02

Whether the terminations were justified and fair

Holding

Agreeing with the trial Judge but for different reasons, the terminations were unjustified and unfair; the disciplinary proceedings were precipitated by the claimants' participation in the strike, some claimants were never given a hearing, and appeals to the University Council went unanswered

Reasoning

Although other charges had been levelled against the claimants, some had lingered for long periods without any show-cause letter until the strike. There was malice in the manner the cases were handled; some claimants were not heard before termination and only judicial review proceedings compelled a hearing for one of them. The procedural unfairness, rather than the lawfulness of the strike itself, rendered the terminations unjustifiable.

p. 14
03

Legality of the Minister's declaration that the strike was unlawful

Holding

The trial Judge erred in holding that the Minister's declaration of the strike as illegal had no force of law; under Section 27(2)(c) of the repealed Trade Disputes Act the Minister had that power and Maseno University was a public sector body for the purposes of Section 27(4)

Reasoning

The definition of public sector in Section 27(4) of the repealed Trade Disputes Act covers bodies corporate established for public purposes by an Act of Parliament, which includes the appellant university. The ILO Digest excerpts relied on were only persuasive. The Industrial Court, a court of concurrent jurisdiction, had also declared the strike unlawful in Industrial Cause No. 105 of 2006 and that order could not be dismissed summarily.

p. 13
04

Remedies - compensation and terminal benefits

Holding

The 12 months' compensation award was upheld as consistent with Section 15(1)(ii) of the repealed Trade Disputes Act, but the award of terminal benefits at 15 days' pay per year worked was set aside as terminal benefits had already been calculated and paid to those entitled

Reasoning

Evidence established that some claimants had been paid their terminal dues including pension, and the trial Judge gave no rationale for awarding terminal benefits without accounting for those payments. Re-awarding them would enrich the claimants unjustly at the appellant's expense. The appeal therefore succeeded only to that limited extent.

p. 14
05

Whether the Disciplinary Committee had power to terminate senior staff (cross-appeal)

Holding

The Disciplinary Committee of Council does have power to hear and determine all disciplinary cases and render decisions appealable to the Council; the cross-appeal ground failed

Reasoning

Clauses 6 and 7 of Statute XVII of Maseno University endow the Disciplinary Committee with power to consider all disciplinary cases of staff, and decisions of the Committee are appealable to the Council. Had the drafters intended the Committee only to recommend to the Council, they would have said so expressly. Section 4(a) does not state that only the Council can remove a person from office.

p. 15

Legal principles established

#
  • The Constitution of Kenya 2010 is prospective and cannot be applied retrospectively to causes of action that accrued before its promulgation
  • National courts cannot ignore domestic statutes in favour of international conventions, particularly conventions that have not been ratified or domesticated; unratified conventions have only persuasive value
  • Under Section 27(2)(c) of the repealed Trade Disputes Act, the Minister for Labour had power to declare a strike in the public sector unlawful, and a party aggrieved by such declaration was obliged to challenge it under Section 32 of that Act before an Industrial Court
  • Where a claim's cause of action arose before commencement of the Labour Relations Act 2007, it must be determined in accordance with the repealed Trade Disputes Act and repealed Employment Act pursuant to clause 4 of the Fifth Schedule
  • The Disciplinary Committee of Council under Statute XVII of Maseno University is endowed with power to hear, determine and make decisions on all disciplinary cases of staff, subject only to appeal to the Council

Court orders

#
  1. 1.The appeal succeeds only to the extent that the award on terminal benefits is set aside
  2. 2.Orders no. 1, 2 and 3 of the Industrial Court (12 months' salary compensation for each grievant and certificates of service) are affirmed
  3. 3.The cross-appeal is dismissed in its entirety
  4. 4.Each party to bear its own costs of the appeal and the cross-appeal

Authorities

#

Legislation

  • University Act (Cap 200, Laws of Kenya)
  • Labour Relations Act, 2007Clause 4, Fifth Schedule; Paragraph 2(4), Fifth Schedule
  • Trade Disputes Act (repealed, Cap 234)Sections 14(9)(c), 15(1)(ii), 17(1)(a) (referred to as Section 27(2)(c) and 27(4) also cited), 31, 32
  • Employment Act (repealed, Cap 226)Sections 17(1)(a) & (e)
  • Employment Act 2007
  • Maseno University Act, 2003Section 25; Statute XVII, clauses 4(a), 6 and 7
  • Constitution of Kenya, 2010Articles 2(5), 2(6) and 50(1)
  • Trade Unions Act (Cap 233)
  • ILO Convention No. 158
  • Maseno University Terms of Service for Academic StaffArticle 25.2.1(b)

Cases cited (1)

  • Samuel Kaman Macharia & Another vs Kenya Commercial Bank Limited & 2 Others
    [2012] eKLR
On appeal from
Industrial Court of Kenya (now Employment and Labour Relations Court) at Kisumu
Industrial Cause No. 814 (N) of 2009
Jurisdiction invoked
First appeal from the Industrial Court of Kenya pursuant to the applicable industrial court appellate provisions (appeal lodged by notice of appeal under Rule 75 of this Court's Rules)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (7)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Maseno University v Universities Academic Staff Union [2015] KECA 235 (KLR)", Case Analysis (2015). Civil Appeal No. 1 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/235/eng@2015-11-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.