John Omole Owuor v Technical University of Kenya [2020] KEELRC 737 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Petitioner was deemed an employee of the Respondent under Regulation 16(1) of the Kenya Polytechnic University College Order 2007
Yes - he had not retired when the Order commenced on 27/8/2007, so he should have been absorbed
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.
Whether the failure to absorb the Petitioner was discriminatory
Yes, in breach of section 82 of the repealed Constitution
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 Different treatment of similarly situated persons without explanation constituted discrimination under the repealed Constitution, and the Petitioner had a right of redress under section 84.
Whether the 10-year delay in filing the Petition defeated the claim
No - the delay was mitigated by the Petitioner's continued correspondence, but was disapproved
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.
The appropriate remedy for the established violation
Global damages of Kshs. 5 million and costs to the Petitioner
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.
Legal principles established
#- 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
#- 1.The Respondent is to pay the Petitioner Kshs. 5,000,000 as damages for discrimination
- 2.The Respondent will pay the costs of the Petition
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.