Robert Adala Obare v Maseno University Council [2018] KEELRC 1487 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the disciplinary process was contrary to Maseno University Statute 2013 and therefore null and void
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.
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.
Whether the Claimant is entitled to the reliefs sought, including reinstatement
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.
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.
Legal principles established
#- 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
#- 1.Kshs.381,759 in lieu of three months notice
- 2.Kshs.1,272,530 in compensation for the unlawful and unfair termination of employment (total award Kshs.1,654,289)
- 3.Interest at court rates from date of judgment till payment in full
- 4.Costs of the suit to the Claimant
- 5.Respondent to provide Claimant certificate of Service within 30 days
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; Maseno University Act framework invoked by the parties)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.