Professor Elijah Biama v University of Eldoret & 2 others [2014] KEELRC 1266 (KLR)
The bottom line
#A Kenyan university employee won dignity and terminal dues claims, but lost his bid to reverse a rival's appointment.
What this practically means
#Executive summary
#Key legal issues
#Abolition of office of Principal and terminal dues
Abolition of the office superseded claims to continued employment; but the petitioner was entitled to six months' salary in lieu of notice under the termination clause and terminal dues under section 40 of the Employment Act, 2007
The elevation of the college to a university abolished the office of Principal. The contract's termination clause required six months' notice, which was not given. The court also applied section 40 of the Employment Act redundancy entitlements: leave pay, one month notice and 15 days' severance for one completed year.
Lawfulness of the interested party's appointment as Vice Chancellor
The appointment was lawful and complied with the constitutional values of public service; no contravention of the petitioner's rights was established
The court examined the recruitment documents and found an open advertisement, objective short-listing, documented scores and ranking, recorded explanations, and appointment of the best-ranked candidate, satisfying Articles 73 and 232 and section 22 of the Public Officer Ethics Act.
Contravention of Article 28 (human dignity) and Article 41 (fair labour practices)
The respondents' conduct in breaching the contract and delaying terminal dues contravened Article 28 and amounted to unfair labour practices
Despite exemplary service, the respondents breached the contract upon abolition of the office and failed to pay terminal dues promptly on two occasions, invoking silence and unfounded promises. This undermined the petitioner's dignity and legitimate expectation for prompt payment.
Jurisdiction of the Industrial Court over human rights claims
The Industrial Court has jurisdiction to enforce fundamental rights ancillary to employment and labour relations; the preliminary objection fails
Relying on USIU v Attorney General and Grace Gacheri Muriithi, the court held that under Article 162(3) and section 12 of the Industrial Court Act, the Industrial Court, being of High Court status, may enforce Article 41 rights and ancillary fundamental rights, and the High Court is barred under Article 165(5)(b).
Use of petition rather than ordinary suit
The petitioner was entitled to move the court by petition; the dichotomy of procedure based on reliefs is dead under the new constitutional order
Guided by Articles 159(2)(d), 23(3) and 19(3)(b), the court held that rights recognised by law are part of the Bill of Rights and a universal approach to enforcement is favoured; litigants choosing among inherited procedural options will not be faulted.
Claims under the acting Vice Chancellor contract
The petitioner was entitled to 30 days annual leave, gratuity for two years, 15% acting allowance from 11.02.2013 to 18.06.2013 and unpaid salary until 18.06.2013
By letter dated 26.08.2013 (exhibit PEB 15) the respondent agreed to pay gratuity for the second year, salary up to 18 June 2013 and 15% acting allowance; no evidence of payment of first-year gratuity was filed.
Legal principles established
#- The Industrial Court, being of the status of the High Court, has jurisdiction to enforce not only Article 41 labour rights but all fundamental rights ancillary and incidental to employment and labour relations
- Under the new constitutional order, a litigant may combine declarations, injunctions, conservatory orders, compensation and judicial review orders in one pleading, and the choice of petition or ordinary action will not be faulted
- Other rights and fundamental freedoms recognised or conferred by law are incorporated into the Bill of Rights by Article 19(3)(b) and are enforceable on equal footing with Bill of Rights freedoms
- Public recruitment and appointment must satisfy the constitutional and statutory standards of fair competition, merit, integrity, competence, suitability and inclusion
Court orders
#- 1.A declaration that the respondents contravened the petitioner's inherent dignity and the right to have that dignity respected and protected as provided for in Article 28 of the Constitution
- 2.The respondent to pay the petitioner pay in lieu of due leave not taken (30 days), pay of one month notice, and severance pay of 15 days salary for the one completed year served as a Principal
- 3.The respondent to pay the petitioner 30 days annual leave, gratuity for two years inclusive the year served as Principal, 15% acting allowance as Vice Chancellor from February 11, 2013 to June 18, 2013 and any unpaid salary until 18.06.2013
- 4.The respondent to pay annual leave allowance of Kshs.50,000.00 and passage and baggage allowance as per the terms and conditions of service
- 5.Petitioner to file and serve computed money figures by 26.09.2014 with the matter to be mentioned for recording quantum
- 6.Respondent to pay the amount by 1.11.2014, in default interest at court rates from 10.06.2013 till full and final payment
- 7.The respondents to pay costs of the suit
- Jurisdiction invoked
- Article 162(2) and 165(5)(b) of the Constitution and section 12 of the Industrial Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Professor Elijah Biama v University of Eldoret & 2 others [2014] KEELRC 1266 (KLR)", Case Analysis (2014). Petition No 3 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1266/eng@2014-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.