Fredrick Otieno v Public Service Commission & 3 others [2019] KEELRC 580 (KLR)

Employment and Labour Relations Court

23 October 2019

RSRadido Stephen

1,463 words in judgment

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The bottom line

The Employment Court refused to stop the recruitment of a new university Vice Chancellor, ruling that reinstatement is a final remedy only awarded after a full hearing, not through interim orders.

What this practically means

Executive summary

Prof Fredrick Otieno, former Vice Chancellor of Masinde Muliro University of Science and Technology, moved the Employment and Labour Relations Court on 7 August 2019 seeking an interim injunction to restrain the respondents from conducting a competitive recruitment for or appointing a new Vice Chancellor, and an order staying the letter of 29 November 2018 notifying him that his contract would not be renewed. His Statement of Claim sought reinstatement or, alternatively, compensation and terminal dues, on grounds that the non-renewal was unfair and discriminatory and violated his rights: the Council relied on a late letter from the Ethics and Anti-Corruption Commission without giving him a hearing, and his professorship was terminated alongside his vice-chancellorship. The Cabinet Secretary and the University Council countered that renewal was discretionary, that recruitment of Vice Chancellors of public universities had been vested in the Public Service Commission by amendment to the Universities Act, and that the applicant had applied and been shortlisted in the very process he attacked. The court, Radido J, applied the Mukisa Biscuit principles for temporary injunctions. It held that staying the non-renewal letter would amount to reinstating the applicant at an interlocutory stage, whereas reinstatement is a final remedy granted after a hearing on the merits under section 49(1) of the Employment Act. The applicant's delay of over nine months, and his participation in the recruitment of his replacement only two days before his interview, further weighed against relief, and damages would be an adequate remedy. The motion was dismissed with costs in the cause. Judgment delivered in Nairobi on 23 October 2019.

Key legal issues

Test for grant of a temporary injunction

Holding

The applicant failed to meet the well-known principles in Mukisa Biscuit Manufacturing Ltd v West End Distributors Ltd (1969) EA 696

Reasoning

The court applied the established Mukisa Biscuit principles. Given that the applicant's claim was anchored on an employment contract, damages would be an adequate remedy and the balance of convenience did not favour interfering with the recruitment process at the interlocutory stage. The court also found the application was brought after inordinate delay and after the applicant had participated in the very recruitment process he sought to restrain, undermining his entitlement to interim relief.

p. 3

Interim stay of a termination as disguised reinstatement

Holding

A stay of the non-renewal letter would effectively reinstate the applicant, which is a final remedy under section 49(1) of the Employment Act, 2007, reserved for a hearing on the merits

Reasoning

The court held that granting a stay of the 29 November 2018 letter would amount to reinstating the applicant into a terminated contractual relationship at an interlocutory stage. Reinstatement in ordinary employment is a final remedy granted after a full hearing on the merits. The court noted that section 49(1) of the Employment Act provides an array of remedies, including reinstatement, that would address any proven violations at trial.

p. 3

Inordinate delay and conduct of the applicant

Holding

The applicant's delay of over 9 months in challenging the decision, coupled with his participation in the recruitment of his replacement, weighed against granting interim relief

Reasoning

The applicant came to court over 9 months after the impugned decision and only 2 days before his scheduled interview for the position of Vice Chancellor, having applied and been shortlisted. No cogent reason was given for the delay. The court found the delay inordinate and the applicant's conduct inconsistent with his claim that the recruitment process was unlawful, treating the challenge as an afterthought.

p. 3

Legal principles established

Reinstatement is a final remedy in ordinary employment, granted only after a hearing on the merits, and cannot be achieved through an interlocutory stay order
Inordinate and unexplained delay, and participation in the impugned recruitment process, disentitle a party from interim relief

Court orders

1.The motion (Notice of Motion dated 7 August 2019) is dismissed
2.Costs in the cause

Authorities

Legislation

Universities Actsection 35
Employment Act, 2007section 49(1)

Cases cited (1)

Mukisa Biscuit Manufacturing Ltd v West End Distributors Ltd
(1969) EA 696

Jurisdiction invoked: Original employment and labour relations jurisdiction (application under the Statement of Claim; Employment Act, 2007 and Universities Act, 2012 in issue)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Fredrick Otieno v Public Service Commission & 3 others [2019] KEELRC 580 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/580/eng@2019-10-23

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