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ELRCPartially AllowedPetition (notice of motion dated 20th May 2019)· [2019] KEELRC 344 (KLR)

Maurice Ajwang Owuor v Catholic University of Eastern Africa [2019] KEELRC 344 (KLR)

Employment and Labour Relations Court
7 November 2019
2,524 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a university couldn't cut a lecturer's allowances or pay him zero salary, ordering the money restored while the case continues.

What this practically means

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Executive summary

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The applicant, a Senior Lecturer and Dean of the Faculty of Law at the Catholic University of Eastern Africa under a three-year contract expiring 31st March 2019, moved the court by notice of motion dated 20th May 2019 seeking conservatory orders against the respondent's letter of 18th February 2019 stopping his deanship and negotiated special allowances. He sought reinstatement of the allowances, a mandatory injunction for payment of February to May 2019 allowances, an attachment allowance deduction refund, maintenance of the status quo and costs. The respondent, through its Human Resource Manager Erick Omondi Njiri, opposed the application as premature for failure to exhaust internal dispute mechanisms, and asserted that the applicant absconded duty, leading to his recall as Dean and appointment of an acting Dean. The court found no evidence of abscondment, noting the respondent had invited the applicant to renew his contract and had renewed it in March 2019. The court held that the stoppage of allowances before contract expiry was unreasonable and unjustified, that the renewal terms could not deviate from the original contract, and that payment of a nil salary in March 2019 contravened Section 19(3) of the Employment Act. Finding the applicant had met the conditions for an interlocutory injunction, the court restrained the respondent from deducting the applicant's allowances, directed reinstatement of amounts deducted in February and March 2019, and directed the respondent to review the renewal terms and reinstate all allowances except the responsibility allowance of Kshs.40,000, pending hearing and determination of the petition. Judgment was delivered at Nairobi on 7th November 2019 by Maureen Onyango, Judge. No costs order appears on the face of the judgment.

Key legal issues

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01

Justification for stoppage of allowances before expiry of contract

Holding

The stoppage of the applicant's deanship and special allowances was unreasonable, unjustified and unlawful

Reasoning

The letter of 18th February 2019 gave no reasons, did not specify what the deanship allowance constituted as there was no such item in the contract or payslip, and stopped allowances before expiry of the contract. There was no evidence the applicant absconded duty; indeed the respondent invited renewal of the contract in December 2018 and renewed it in March 2019.

p. 7
02

Nil salary payment

Holding

Paying the applicant a nil net salary in March 2019 breached Section 19(3) of the Employment Act

Reasoning

The March 2019 payslip showed deductions totalling the entire gross pay, leaving a net pay of zero. The court held this contravened the express provisions of Section 19(3) of the Employment Act, which requires payment of the full amount earned less lawful deductions.

p. 7
03

Renewal terms deviating from original contract

Holding

The renewal terms could not lawfully remove allowances contained in the original contract

Reasoning

The renewed contract reduced the applicant to basic salary, house and transport allowances, dropping the responsibility, entertainment, telephone and negotiated special allowances. The court held a renewal cannot deviate from the original contract being renewed, and the letter of 18th February 2019 stopping allowances was premised on no contractual item.

p. 7
04

Entitlement to injunction pending petition

Holding

The applicant satisfied the conditions for an injunction pending hearing and determination of the petition

Reasoning

Having found the stoppage of allowances unreasonable, unjustified and contrary to Section 19(3) of the Employment Act, the court concluded the applicant had established a prima facie case and met the conditions for interlocutory relief, restraining further deductions and directing reinstatement of deducted allowances pending the petition.

p. 7

Legal principles established

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  • An employer cannot pay an employee a nil salary; payment of salary is mandatory under Section 19(3) of the Employment Act
  • A renewal of contract cannot deviate from the original contract that was being renewed

Court orders

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  1. 1.Pending hearing and determination of the petition, the respondent is restrained from deducting the allowances of the applicant and directed to reinstate the amount so deducted in the months of February and March 2019
  2. 2.The respondent is further directed to review the terms of renewal of applicant's contract and reinstate all allowances with the exception of the responsibility allowance of Kshs.40,000/= pending hearing and determination of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10(2)(c), 22(1), 22(2)(a), 22(2)(c), 23(1), 27, 28, 29(f), 30(1), 30(2), 41(1), 41(2)(b), 47, 48, 50(1), 165, 258(1), 258(2)(c)
  • Employment Act, 2007Section 19(3)
  • Constitution (Protection of Rights and Fundamental Freedoms) Practice and Procedure RulesRule 23
Jurisdiction invoked
Articles 10(2)(c), 22(1) and (2)(a), (c), 23(1), 41(1), (2)(b), 47, 48, 50(1), 165, and 258(1) and (2)(c) of the Constitution of Kenya 2010; Rule 23 of the Constitution (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules

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, "Maurice Ajwang Owuor v Catholic University of Eastern Africa [2019] KEELRC 344 (KLR)", Case Analysis (2019). Petition (notice of motion dated 20th May 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/344/eng@2019-11-07

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