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ELRCPartially AllowedPetition No 45 of 2017· [2020] KEELRC 737 (KLR)

John Omole Owuor v Technical University of Kenya [2020] KEELRC 737 (KLR)

Employment and Labour Relations Court of Kenya
9 July 2020
2,229 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a seconded lecturer was unlawfully denied a job when his college became a university, awarding him Kshs. 5 million.

What this practically means

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Executive summary

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The Petitioner, employed by the Teachers Service Commission (TSC) on 21/3/1996 and seconded to Kenya Polytechnic as a Senior Lecturer, petitioned after Kenya Polytechnic was converted into the Kenya Polytechnic University College (a constituent college of the University of Nairobi) with effect from 27/8/2007 under the Kenya Polytechnic University College Order 2007. He claimed that Regulation 16(1) of the Order deemed all existing staff, including those on secondment, employees of the University College, but that the Respondent refused to absorb him while absorbing others, discriminating against him contrary to Articles 10, 27, 41 and 47 of the 2010 Constitution and section 82 of the repealed Constitution. He sought declarations, mandamus for reinstatement, or alternatively damages for loss of earnings from 2007 to age 70. The Respondent denied any employment relationship, asserting the Petitioner remained a TSC employee, had attained the compulsory retirement age of 55 by 1/9/2008, and that secondment did not transfer employment without a fresh contract. The Court found the Petitioner was retired on 31/8/2008, after the Order commenced on 27/8/2007, so he should have been absorbed under Regulation 16(1); the failure to do so, without explanation, was discriminatory. The Court disapproved the 10-year delay in filing but found it mitigated by his continued correspondence up to 2015. It awarded Kshs. 5,000,000 in damages for discrimination and ordered the Respondent to pay the costs of the Petition, declining reinstatement.

Key legal issues

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01

Whether the Petitioner was deemed an employee of the Respondent under Regulation 16(1) of the Kenya Polytechnic University College Order 2007

Holding

Yes - he had not retired when the Order commenced on 27/8/2007, so he should have been absorbed

Reasoning

The Court found the Petitioner was retired on 31/8/2008, whereas the Order commenced on 27/8/2007 while he was still a serving employee of the TSC on secondment. The contention that he had retired before the University College was created was found untrue, and Regulation 16(1) deeming him an employee therefore applied.

p. 3
02

Whether the failure to absorb the Petitioner was discriminatory

Holding

Yes, in breach of section 82 of the repealed Constitution

Reasoning

The Respondent failed to explain why the Petitioner was not absorbed while other seconded staff were. Different treatment of similarly situated persons without explanation constituted discrimination under the repealed Constitution, and the Petitioner had a right of redress under section 84.

p. 3
03

Whether the 10-year delay in filing the Petition defeated the claim

Holding

No - the delay was mitigated by the Petitioner's continued correspondence, but was disapproved

Reasoning

The Court acknowledged the 10-year delay was a matter it frowned upon and would ordinarily defeat claims aimed at enrichment rather than vindication. However, the correspondence showed the Petitioner followed up on his retirement as late as 2015, when the Respondent finally refused reinstatement, justifying the exercise of discretion in his favour.

p. 3
04

The appropriate remedy for the established violation

Holding

Global damages of Kshs. 5 million and costs to the Petitioner

Reasoning

Reinstatement was impractical because the Respondent's actions cut short the Petitioner's career path in a manner that could not be recovered. The Court found Kshs. 5 million adequate compensation for the infringement, aligning with the amount awarded in Geeta Joshi v Pandya Memorial Hospital.

p. 4

Legal principles established

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  • Staff of the Kenya Polytechnic existing prior to the commencement of the Kenya Polytechnic University College Order 2007, including those on secondment, were deemed to be employees of the University College
  • Failure to absorb a seconded staff member into the new institution while others were absorbed amounts to discrimination under section 82 of the repealed Constitution
  • Where no specified limitation period applies to a constitutional claim, the court considers the period of delay and the reasons for it

Court orders

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  1. 1.The Respondent is to pay the Petitioner Kshs. 5,000,000 as damages for discrimination
  2. 2.The Respondent will pay the costs of the Petition

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 23, 27, 41, 47, 236(b)
  • Constitution of Kenya (repealed)Sections 82 and 84
  • Kenya Polytechnic University College Order 2007 (Gazette Supplementary 82, Legal Notice No. 159)Regulations 3(2), 16(1) and 16(7)

Cases cited (8)

  • Hesbon Ngaruiya Waigi v Equitorial Commercial Bank Limited
    [2013] eKLR
  • Janine Buss v Gems Cambridge International School Limited
    [2016] eKLR
  • Geeta Joshi v Pandya Memorial Hospital
    [2019] eKLR
  • Rev. John Mugania v Kenya Methodist University & Prof. Mutuma Mugambi
    [2012] eKLR
  • Nahashon Cheruiyot Ngeno v Strengthening of Mathematics & Science Education Project & another
    [2015] eKLR
  • Kenya Education Staff Institute v Kenya Union of Post Primary Teachers (Kuppet) & 2 Others
    [2020] eKLR
  • Joan Akinyi Kabasellah and 2 Others vs the Attorney General Petition No. 41 of 2014
  • Abraham Kaisha Kanzika and Another vs Central Bank of Kenya
Jurisdiction invoked
Constitution of Kenya, 2010 (petition for enforcement of rights under Articles 10, 27, 41, 47 and repealed sections 82 and 84)

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, "John Omole Owuor v Technical University of Kenya [2020] KEELRC 737 (KLR)", Case Analysis (2020). Petition No 45 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/737/eng@2020-07-09

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