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ELRCAllowedMotion dated 24th July, 2019 (in an ELRC cause at Eldoret)· [2020] KEELRC 1898 (KLR)

John K Kalasinga & 2 others v Moi University [2020] KEELRC 1898 (KLR)

Employment and Labour Relations Court
13 February 2020
ANAbuodha Jorum Nelson
1,967 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 blocked Moi University from surcharging union officials because no disciplinary hearing preceded the surcharge.

What this practically means

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Executive summary

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The claimants, employees of Moi University and elected officials of the KUDHEIHA and UNTENSU unions, moved the Employment and Labour Relations Court at Eldoret by a Motion dated 24th July 2019 seeking an interlocutory injunction restraining the respondent from enforcing a surcharge communicated on 8th August 2018 and confirmed on appeal on 11th July 2019. The surcharge arose from an internal audit which found union committee allowances of approximately Kshs. 8,008,400 irregularly paid, with amounts of Kshs. 848,200, 1,168,000 and 158,000 claimed from the individual claimants. The claimants asserted the payments were approved within the Private Sponsored Students Program framework by the University Council and Board of Management, and that the surcharge was imposed without a hearing, was double punishment, and was discriminatory. The respondent raised a preliminary objection on non-compliance with Order 53 of the Civil Procedure Rules and the ELRC Procedure Rules 2016, and contended the claimants held fictitious meetings and could not shield themselves behind trade union activity. The court, applying the interlocutory injunction test, held that a surcharge is a disciplinary sanction which should follow a disciplinary hearing, yet the respondent admitted no disciplinary proceedings had been commenced and could not show under what other process the surcharge was reached. A prima facie case was demonstrated, and the interim orders of 25th July 2019 remained in force pending the full trial on a priority basis.

Key legal issues

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01

Whether the surcharge was imposed without a disciplinary process, establishing a prima facie case for interlocutory relief

Holding

A surcharge is a disciplinary sanction; the respondent admitted no disciplinary proceedings had commenced, yet had not shown under what other process the surcharge was reached, so the claimants demonstrated a prima facie case warranting interlocutory injunction.

Reasoning

The court framed the test for an interlocutory injunction as a prima facie case with probability of success and whether damages would be adequate, with balance of convenience in doubt. The claimants' main complaint was that the surcharge decision was reached without an opportunity to be heard. The respondent's own affidavit and submissions confirmed that no disciplinary proceedings had been commenced against the claimants, and the respondent failed to show under what process other than a disciplinary process the surcharge was reached. The court avoided over-analysing the evidence at the interlocutory stage, leaving that for the full trial, and held the interim orders should remain in force.

p. 3

Legal principles established

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  • A surcharge is a disciplinary sanction affecting an employee's salary or wages and must be handed down at the conclusion of a disciplinary hearing.

Court orders

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  1. 1.Interlocutory injunction restraining the respondent from infringing surcharge against the claimants pursuant to the decisions communicated on 8th August, 2018 and 11th July, 2019 pending the hearing and determination of the claim
  2. 2.The interim orders issued on 25th July, 2019 to remain in force pending the hearing and determination of the claim on a priority basis

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 27
  • Labour Relations Act, No. 14 of 2007Section 4
  • Employment ActSection 5
  • Universities ActSection 63(3)
  • Limitation of Actions ActSection 4(1) (cited as 'section 415')
  • Civil Procedure RulesOrder 53
  • ELRC Procedure Rules, 2016Rule 7(2) (cited as 'rule 792)')
  • Statutes of Moi University, 2013Statute XVII(5)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Constitution (article 41) and the Employment and Labour Relations Court Act; interlocutory injunction under the court's procedure rules

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 K Kalasinga & 2 others v Moi University [2020] KEELRC 1898 (KLR)", Case Analysis (2020). Motion dated 24th July, 2019 (in an ELRC cause at Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1898/eng@2020-02-13

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