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ELRCDismissedNot stated in judgment· [2019] KEELRC 773 (KLR)

Peter Ogecha v Kenyatta University [2019] KEELRC 773 (KLR)

Employment and Labour Relations Court
27 September 2019
OMOnesmus N. Makau
2,079 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed a lecturer's bid for immediate reinstatement, ruling such orders must generally await a full trial.

What this practically means

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Executive summary

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A lecturer in Kenyatta University's Department of Security and Correctional Science Studies was investigated over inflammatory emails sent to university users in April 2018, charged with publishing inflammatory reports, and had those charges withdrawn for lack of evidence. He was then subjected to internal disciplinary proceedings on the same allegations, suspended, dismissed by letter dated 15 March 2019, and his appeal remained unheard. He moved the Employment and Labour Relations Court by notice of motion seeking reinstatement, an injunction restraining interference with his duties, a declaration that the trial of 6 March 2019 and the dismissal were unfair, discriminatory and unlawful, and costs. The Respondent opposed, arguing that the prayers pre-empted the main suit, that reinstatement must await full trial (relying on Wells Fargo and Kenya Tea Growers Association), that the dismissal followed a fair process, and that the criminal charges could be reinstated under section 87(a) of the Criminal Procedure Code. The court held that the reinstatement prayer was spent, being tied to determination of the application itself, and that reinstatement should in any event await full trial absent very special circumstances under section 49 of the Employment Act. The injunction, predicated on reinstatement, fell with it. The declaration was refused as final relief requiring trial, not sought in the main suit, and as it would condemn the Respondent unheard contrary to Article 50. The application was dismissed with costs, the main cause remaining for trial.

Key legal issues

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01

Whether reinstatement could be granted at the interlocutory stage

Holding

No; the prayer was spent and reinstatement should await full trial absent very special circumstances

Reasoning

The court noted that order 2 sought reinstatement pending determination of the same application, so it was overtaken by events once the ruling was delivered. It further held that reinstatement orders should as a matter of course await full trial so the court can assess practicability under section 49 of the Employment Act, consistent with Court of Appeal authority cited by the Respondent.

p. 3
02

Whether an interlocutory injunction should issue

Holding

No; the injunction was predicated on reinstatement and was likewise overtaken by events

Reasoning

Since the injunction was intended to protect the Applicant's continuation in duties following reinstatement pending determination of the application, it fell with the reinstatement prayer. The court declined to assess the Giella threshold, noting the application had no ground to stand on.

p. 3
03

Whether the court could declare the disciplinary trial and dismissal unfair at the interlocutory stage

Holding

No; the declaration was final relief requiring trial and was not sought in the main suit

Reasoning

The court held that granting the declaration would decide the suit at the interlocutory stage, render it nugatory, and condemn the Respondent unheard contrary to Article 50 of the Constitution. The order was also not founded on the prayers in the Memorandum of Claim.

p. 3

Legal principles established

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  • Except on very special circumstances shown by evidence, reinstatement should await full trial so the court can assess practicability under section 49 of the Employment Act
  • Interlocutory injunctions are governed by the Giella principles: prima facie case, irreparable injury not compensable by damages, and balance of convenience

Court orders

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  1. 1.Application dismissed with costs

Authorities

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Legislation

  • Employment Actsection 49(4); section 49
  • Criminal Procedure Codesection 87(a)
  • Constitution of Kenya, 2010Article 50
  • Collective Bargaining Agreement between Kenyatta University and UASUclauses 26(c), 26(g), 26(b)(viii)

Cases cited (3)

  • Wells Fargo Limited vs. Cyrus Kioko & 48 Others
    [2015] eKLR
  • Kenya Tea Growers Association & Another vs. Kenya Plantation and Agricultural Workers Union
    [2018] eKLR
  • Giella vs. Cassman Brown
    [1973] EA 358
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment dispute (interlocutory notice of motion within a cause); Article 50 of the Constitution invoked in analysis

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, "Peter Ogecha v Kenyatta University [2019] KEELRC 773 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/773/eng@2019-09-27

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