Technical University of Mombasa v Universities Academic Staff Union (UASU) Tum-Chapter [2021] KECA 581 (KLR)

Court of Appeal of Kenya

19 May 2021

W. Ouko DMD.K. Musinga SKS. Gatembu Kairu

1,454 words in judgment

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The bottom line

Kenya's Court of Appeal upheld orders suspending TUM's extra-teaching policy, confirming appellate judges rarely overturn a lower court's discretionary interim decisions.

What this practically means

Executive summary

This appeal arose from an interlocutory ruling of the Employment and Labour Relations Court at Mombasa (L. Ndolo, J.) delivered on 9th October 2019, suspending implementation of Technical University of Mombasa's new academic policy requiring lecturers to teach four instead of three units per semester. The respondent union petitioned the ELRC alleging denial of a hearing, lack of consultation, and loss of income from uncompensated additional workload, and sought conservatory orders pending determination of the petition. The Judge found a prima facie case and suspended the policy. The appellant appealed, complaining that the Judge had made final conclusions and findings on the merits at an interlocutory stage. The Court of Appeal (Ouko, P., Musinga and Gatembu Kairu, JJ.A.) dismissed the appeal. Applying the classic Mbogo v Shah standard, it held that an appellate court may interfere with a discretionary decision only where the judge misdirected herself in law, misapprehended the facts, took into account extraneous matters, failed to consider relevant matters, or was plainly wrong. The Court found the Judge was fully conscious that she was dealing with an interlocutory application; her observations on lack of consultation and unilateral alteration of employment terms were made solely in assessing whether a prima facie case existed, and although her language could have been more tempered, no error justifying interference was discerned. The appeal was dismissed with costs, the Court being careful not to embarrass the trial court before which the main petition remained pending.

Key legal issues

Whether the ELRC Judge made final findings at an interlocutory stage

Holding

The Judge's 'findings' were made only in the context of assessing whether the threshold for interlocutory relief was met, and did not constitute final conclusions.

Reasoning

The Court held that the Judge was conscious she was dealing with an interlocutory application, not the petition. Her observations on lack of consultation and unilateral alteration of terms were made in assessing whether a prima facie case existed. While her language could have been more tempered, this disclosed no error warranting appellate interference.

p. 2

Standard for appellate interference with discretionary decisions

Holding

Interference is warranted only on the established Mbogo v Shah grounds; none was established here.

Reasoning

Relying on Sir Charles Newbold P. in Mbogo v Shah, the Court reiterated that an appellate court should not interfere with a judge's exercise of discretion unless the judge misdirected himself, arrived at a wrong decision as a result, or it is manifest from the case as a whole that the judge was clearly wrong, resulting in misjustice. The impugned ruling disclosed no such error.

p. 2

Legal principles established

An appellate court may interfere with the exercise of discretion by a lower court only where the judge misdirected herself in law, misapprehended the facts, took into account extraneous considerations, failed to consider relevant considerations, or the decision is plainly wrong
On an interlocutory application for conservatory orders, the applicant need only establish a prima facie case disclosing arguable issues; the court is not required to make definite findings of fact or law

Court orders

1.The appeal is dismissed
2.Costs of the appeal awarded to the respondent

Authorities

Cases cited (2)

Mbogo & Another vs. Shah
[1968] E.A. 93
Kevin K. Mwiti & others vs. Kenya School of Law & others
[2015] eKLR

On appeal from: Employment and Labour Relations Court at Mombasa; Constitutional Petition No. 6 of 2019
Jurisdiction invoked: First appeal / appellate jurisdiction of the Court of Appeal against an interlocutory ruling of the ELRC (Constitution, Article 164 - Court of Appeal jurisdiction inferred from the appeal's nature; the judgment does not cite a specific provision)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Technical University of Mombasa v Universities Academic Staff Union (UASU) Tum-Chapter [2021] KECA 581 (KLR)", Case Analysis (2021). Civil Appeal No. 146 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/581/eng@2021-05-19

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