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ELRCPartially AllowedAmended Memorandum of Claim dated 27th July, 2015 (initial claim dated 3rd December, 2014)· [2018] KEELRC 1487 (KLR)

Robert Adala Obare v Maseno University Council [2018] KEELRC 1487 (KLR)

Employment and Labour Relations Court
12 July 2018
1,886 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Maseno University unlawfully dismissed its procurement officer because it used a disciplinary body its own statute required but never created, and must pay over Kshs.1.6 million.

What this practically means

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Executive summary

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The Claimant, a procurement officer employed by Maseno University from 7th May 2012, was summoned before the University Council on 4th April 2014, asked to step aside by letter dated 7th April 2014, charged with 12 counts on 6th October 2014, appeared before a disciplinary hearing on 30th October 2014 and was summarily dismissed by letter dated 28th November 2014. He claimed reinstatement or, alternatively, compensation for wrongful termination, terminal benefits, a certificate of service, costs and interest, contending the disciplinary panel did not conform to section 18(3) and (4) of the Maseno University Statute 2013 and that the Council acted as complainant, investigator, prosecutor and judge. The Respondent admitted that the statutory disciplinary committees had never been constituted, pleading a transitional period. The parties dispensed with oral evidence and proceeded by written submissions. The court framed two issues: whether the disciplinary process was contrary to the Statute 2013 and therefore null and void, and whether the Claimant was entitled to the reliefs sought. Holding the Statute had been in operation over a year before the hearing, the court found the University acted ultra vires its own statute; the disciplinary body was illegal and its decision null and void. Reinstatement was refused for insufficient material, but compensation of ten months' salary (Kshs.1,272,530) was awarded under sections 49(1)(c) and 49(4) of the Employment Act, following Kenfreight (EA) Limited v Benson K. Nguti, plus three months' notice pay (Kshs.381,759), interest, costs and a certificate of service within 30 days. Judgment dated 12th July 2018, Mathews N. Nduma, Judge.

Key legal issues

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01

Whether the disciplinary process was contrary to Maseno University Statute 2013 and therefore null and void

Holding

Yes. The Statute 2013 had been in operation since 30th August 2013, over a year before the disciplinary hearing of 30th October 2014, yet the mandatory disciplinary committees under section 18(3) and (4) had not been constituted. The Council had no lawful organ to discipline the Claimant and acted ultra vires the statute.

Reasoning

The Respondent admitted the procedural flaws, pleading a transitional period as justification. The court held the Statute had been operational for over one year and two months, so the delay in implementing it was inordinate and could not be visited on the Claimant. The body that heard and dismissed the Claimant was therefore illegal, and its decision unlawful, null and void.

p. 3
02

Whether the Claimant is entitled to the reliefs sought, including reinstatement

Holding

Partly. Reinstatement was refused for insufficiency of material, but the Claimant was awarded compensation under sections 49(1)(c) and 49(4) of the Employment Act, three months' salary in lieu of notice, interest, costs and a certificate of service.

Reasoning

The court noted the Claimant held a position of utmost trust, his contract had about three years and eight months to run, and the merits of the allegations were never fully canvassed since parties dispensed with oral evidence; the Claimant bore the primary onus of proof. Following Kenfreight (EA) Limited v Benson K. Nguti, where 12 months' compensation was upheld, the court awarded 10 months' salary, considering the Claimant's two years of service and that he did not contribute to his dismissal.

p. 3

Legal principles established

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  • A university that fails to constitute the disciplinary committees required by its own statute cannot discipline staff through an unlawful body, and any resulting dismissal is null and void; the employer cannot rely on its own transitional omissions to defeat an employee's rights.
  • An employee dismissed through a process ultra vires the governing statute is entitled to compensation under sections 49(1)(c) as read with 49(4) of the Employment Act, even where reinstatement is not appropriate.

Court orders

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  1. 1.Kshs.381,759 in lieu of three months notice
  2. 2.Kshs.1,272,530 in compensation for the unlawful and unfair termination of employment (total award Kshs.1,654,289)
  3. 3.Interest at court rates from date of judgment till payment in full
  4. 4.Costs of the suit to the Claimant
  5. 5.Respondent to provide Claimant certificate of Service within 30 days

Authorities

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Legislation

  • Maseno University Statutesection 18(3) & (4)
  • University Actsection 63(3)
  • Constitution of KenyaArticle 50(1)
  • Employment Actsections 41, 43, 45, 49(1)(c) and 49(4)
  • Evidence Act, Cap 80 Laws of Kenyasections 107, 108 and 109
  • CBA (University Collective Bargaining Agreement)clause 16.2.1(a) and (c); Article 5(i)-(m)

Cases cited (1)

  • Kenfreight (EA) Limited v Benson K. Nguti
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; Maseno University Act framework invoked by the parties)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Robert Adala Obare v Maseno University Council [2018] KEELRC 1487 (KLR)", Case Analysis (2018). Amended Memorandum of Claim dated 27th July, 2015 (initial claim dated 3rd December, 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1487/eng@2018-07-12

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