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ELRCPartially AllowedPetition (Conservatory/Contempt application by Notice of Motion dated 19th July 2021; contempt application dated 8th August 2021)· [2021] KEELRC 209 (KLR)

Universities Academic Staff Union (UASU) v University of Nairobi & another; Cabinet Secretary, Ministry of Education & 3 others (Interested Parties) [2021] KEELRC 209 (KLR)

Employment and Labour Relations Court
10 December 2021
6,538 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court blocked the University of Nairobi's governance reforms and found its Vice Chancellor guilty of disobeying court orders.

What this practically means

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Executive summary

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UASU, the recognised trade union for academic staff at the University of Nairobi, moved the Court by notice of motion dated 19th July 2021 seeking conservatory orders restraining implementation of what it described as the Vice Chancellor's Proposed Governance Reforms dated July 2021 and a memo dated 14th July 2021, and later sought contempt findings against five university officers for breach of conservatory orders issued on 21st July 2021. The Respondents denied that any document styled the Vice Chancellor's Proposed Governance Reforms existed, asserting the reforms originated from the Senate and were approved by the Council, which had already made acting appointments on 12th July 2021 before the orders issued. The court framed three issues: the identity of the impugned document, whether a prima facie case was established, and whether contempt was proved. It found the named 'Proposed Governance Reforms' document unproved but the memo of 14th July 2021 in existence; found that the 1st Respondent's own communication showed UASU alone among the unions was not consulted, establishing a prima facie case and potential irreparable loss; and held the application met the threshold for injunctive orders. On contempt, four officers were cleared for want of proof of service or knowledge, but Vice Chancellor Professor Stephen Kiama, who admitted knowledge of the orders yet issued guidelines on 29th July 2021 implementing the restrained memo, was found guilty of contempt, with sentencing set for 27th January 2022.

Key legal issues

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01

Existence of the document described as the Vice Chancellor's Proposed Governance Reforms dated July 2021

Holding

The named document was not proved to exist; what exists is the memo dated 14th July 2021, produced by both parties

Reasoning

The court examined the affidavits and annexures of both sides. The Respondents deposed that the reforms originated from the Senate and the Council, not from the Vice Chancellor, and that no document called the 'Vice Chancellor's Proposed Governance Reforms' existed. The court accepted this only in respect of that named document, while finding the memo of 14th July 2021, annexed by both parties, to be in existence and the true subject of the application.

p. 5
02

Whether a prima facie case was established for conservatory orders

Holding

Yes - a prima facie case was established on the face of the pleadings, warranting further investigation by the Court

Reasoning

Applying Mrao and Nguruman, the court found the 1st Respondent's own letter of 14th July 2021 admitted that only KUSU and KUDHEHIA were consulted, not UASU. The Union had written on 9th and 14th July seeking information on the restructuring without response, contrary to the Access to Information Act. The exclusion of a recognised trade union whose members' positions were to be abolished constituted an apparent infringement of rights, and members faced irreparable loss.

p. 8
03

Whether the Respondents were in contempt of the orders of 21st July 2021

Holding

Professor Stephen Kiama was guilty of contempt; the other named officers were not

Reasoning

The court set out the civil contempt test requiring proof of the order's terms, knowledge, breach and deliberateness. Only Kiama admitted knowledge of the orders and nonetheless issued Guidelines for Examination of Thesis, Dissertations and Project Papers on 29th July 2021, despite the orders specifically restraining implementation of the memo of 14th July 2021 which he himself had issued. The other officers were never shown to have been served or aware of the orders, so no contempt was proved against them.

p. 11

Legal principles established

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  • A prima facie case in civil cases is one in which, on the material presented, a tribunal properly directing itself will conclude that a right has apparently been infringed so as to call for an explanation or rebuttal from the opposite party
  • The elements of civil contempt are: clear terms of the order, knowledge of the order, breach of it, and deliberate conduct; and the obligation to obey a court order is unqualified even where the person believes the order to be irregular or void
  • A person cannot escape compliance with a court order on the basis that the order was issued 'in a vacuum' or rests on a mistaken description of the restrained document

Court orders

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  1. 1.Conservatory (injunctive) orders granted - the application meets the threshold for grant of injunctive orders restraining implementation of the governance reforms pending determination of the Petition
  2. 2.Professor Stephen G. Kiama (Vice Chancellor) found guilty of contempt of the Court orders issued on 21st July 2021
  3. 3.Prof. Stephen G. Kiama ordered to appear in Court on 27th January 2022 for sentencing
  4. 4.No contempt findings made against Prof. Winfred Kamau, Prof. Bernard Mwangi, Prof. Leonidah Kerubo and Prof. Mohamud Jama
Jurisdiction invoked
Constitution of Kenya, 2010 (Articles 10, 23, 27, 47, 73, 75, 201, 232 and 234 invoked as violated); court exercising first-instance jurisdiction over a petition and interlocutory conservatory/contempt applications

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, "Universities Academic Staff Union (UASU) v University of Nairobi & another; Cabinet Secretary, Ministry of Education & 3 others (Interested Parties) [2021] KEELRC 209 (KLR)", Case Analysis (2021). Petition (Conservatory/Contempt application by Notice of Motion dated 19th July 2021; contempt application dated 8th August 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/209/eng@2021-12-10

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