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ELRCDismissedNotice of Motion dated 2nd November 2020 in a Constitutional Petition (Employment and Labour Relations Court)· [2020] KEELRC 110 (KLR)

Thomas Ekamais Akuja v Turkana University College Council [2020] KEELRC 110 (KLR)

Employment and Labour Relations Court
10 December 2020
HWHellen Wasilwa
5,058 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan university professor's bid to stop his disciplinary process failed because the same issues had already been decided by another employment court.

What this practically means

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Executive summary

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The Petitioner, Principal of Turkana University College, moved the Employment and Labour Relations Court by Notice of Motion dated 2nd November 2020 seeking conservatory orders staying a disciplinary process communicated through letters of 16th September and 26th October 2020, an order reinstating him to work and lifting the indefinite compulsory leave imposed by the Respondent's Council resolution of 29th January 2020, and leave for substituted service. He argued that section 63 of the Universities Act, 2012 and the Human Resources Manual required the disciplinary process to be concluded within six months, and that the indefinite compulsory leave and the delayed disciplinary process violated Articles 41 and 47 of the Constitution. The Respondents opposed, contending inter alia that the Council had not been duly constituted for part of the period, that COVID-19 and prior court proceedings in Eldoret ELRC No. 10 of 2020 had interrupted the process, that the Petitioner had not exhausted internal mechanisms under the Fair Administrative Action Act, and that the application was res judicata. The court framed three issues, beginning with jurisdiction. It found that the Eldoret court, per Hon. Justice Abuodha, had on 26th June 2020 already considered and dismissed an application seeking to quash the compulsory leave letter. Holding that a court of concurrent jurisdiction had adjudicated on the same issues, the court concluded the application was res judicata and that it lacked jurisdiction to revisit the matter, declining to consider the other issues. The application was dismissed with costs in the Petition.

Key legal issues

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01

Whether the court had jurisdiction over the application given prior litigation in Eldoret ELRC No. 10 of 2020

Holding

The application was res judicata; the court lacked jurisdiction to revisit the compulsory leave and disciplinary process issues already determined by a court of concurrent jurisdiction

Reasoning

The applicant had previously sought, in Eldoret ELRC No. 10 of 2020, orders quashing the letter sending him on compulsory leave. Justice Abuodha considered that prayer, found no merit in it and dismissed the application. Since a court of concurrent jurisdiction had already considered the same issues and declined interim relief, the present application was barred by res judicata and the court declined to consider the remaining issues.

p. 6

Legal principles established

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  • A court of concurrent jurisdiction that has adjudicated on interim reliefs touching on a matter bars a subsequent court from revisiting the same issues; the plea of res judicata applies

Court orders

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  1. 1.The application dated 2nd November 2020 is found to be res judicata and without merit and is dismissed
  2. 2.Costs in the Petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 23, 41, 47
  • Employment Act, 2007Sections 43, 45, 49(3) and (4), 12(3)
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 51 Rule 4
  • Universities Act, No. 42 of 2012Section 63
  • Turkana University College Order, 2017Sections 16(1), 16(8)(a)
  • Fair Administrative Action Act, 2015Sections 9(2) and (3), 4(6)
  • Employment and Labour Relations Court Act CAP 234 B
  • Employment and Labour Relations Court (Procedure) Rules

Cases cited (16)

  • Rebecca Ann Maina, Monica Nyambura Wainaina & Joshua Patrick Macharia v Jomo Kenyatta University of Agriculture and Technology
    [2015] eKLR
  • Aviation & Allied Workers Union v Kenya Airways Limited
  • Anne Wambui Kamuiru v Kenya Airways
    [2016] eKLR
  • Timon Otieno Mboga v Kenya Forest Service
    [2015] eKLR
  • Elias Omolo Oyoo vs Mumias Sugar Co LTD
    [2016] eKLR
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    (1989) KLR 1
  • Kamunye & others V the Pioneer General Assurance Society LTD
    (1971) EA 263 at 265
  • Independent Electoral & Boundaries Commission V Maina Kiai & 5 others
    [2017] eKLR
  • Republic v Kerio Valley Development Authority Exparte David Kimosop
    [2019] eKLR
  • Speaker of the National Assembly v James Njenga Karume
    [1992] eKLR
  • Secretary, County Public Service Board & another v Hulbhai Gedi Abdille
    [2017] eKLR
  • Thomson Kerongo and 2 others v James Omariba Nyaoga and 3 others
    [2017] eKLR
  • The Engineer Board of Kenya v Jesse Waweru Wahome & others
    Court of Appeal Civil Appeal No. 240 of 2013
  • Geoffrey Mworia v Water Resources Management Authority and 2 others
    [2015] eKLR
  • James Omariba Nyaoga & another v Speaker of the County Assembly Kisii & 2 others
    [2016] eKLR
  • Prof. Thomas Ekamias Akuja v Turkana University College, Chairman and Turkana University College Council
    Eldoret ELRC Cause No. 10 of 2020
Jurisdiction invoked
Articles 22, 23, 41 and 159 of the Constitution of Kenya, 2010; sections 49(3), (4) and 12(3) of the Employment Act, 2007

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, "Thomas Ekamais Akuja v Turkana University College Council [2020] KEELRC 110 (KLR)", Case Analysis (2020). Notice of Motion dated 2nd November 2020 in a Constitutional Petition (Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/110/eng@2020-12-10

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