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ELRCPartially AllowedPetition No. 86 of 2019· [2021] KEELRC 425 (KLR)

Maurice Ajwang Owuor v Catholic University of Eastern Africa [2021] KEELRC 425 (KLR)

Employment and Labour Relations Court
12 November 2021
5,861 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled the Catholic University unfairly ended a lecturer-dean's combined role early, awarding him about Kshs.1.86 million, but rejected several claims for lack of evidence.

What this practically means

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Executive summary

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Dr. Maurice Ajwang Owuor, formerly Senior Lecturer and Dean of the Faculty of Law at the Catholic University of Eastern Africa, petitioned the ELRC claiming that the University terminated his deanship and stopped his special allowances on 18th February 2019 without notice, valid reasons or a fair hearing, paid him zero salary for February to April 2019, and constructively dismissed him in violation of multiple constitutional provisions. He sought deanship and special allowances, supervision arrears, salary to March 2022, gratuity, and damages for constitutional violations, reputational harm and breach of contract. The University countered that his fixed-term contract expired on 31st March 2019, that he absconded duty and was lawfully dismissed for absconding and insubordination after ignoring a show cause notice, and that the petition was prematurely instituted. The court framed three issues: constitutional violation, unlawful termination versus absconding, and entitlement to reliefs. Applying the Anarita Karimi Njeru precision principle, it held the petition raised contractual rather than constitutional issues. On the merits, it found the appointment as Senior Lecturer and Dean was a single indivisible package and that stopping the deanship allowances on 18th February 2019, before the contract lapsed on 31st March 2019, was a premature termination without due process; the Petitioner did not abscond. The court awarded the February and March 2019 salary shortfall of Kshs.430,896 and compensation of Kshs.1,432,000, with interest and costs to the Petitioner, but refused supervision arrears, project supervision payments, salary from April 2019 to March 2022, and gratuity for want of evidence or contractual basis.

Key legal issues

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01

Whether the Petitioner pleaded constitutional violations with the precision required by Anarita Karimi Njeru

Holding

The petition failed to plead with precision how zero salary payment of itself violated the constitutional rights pleaded; the real issues were contractual, not constitutional

Reasoning

The court applied the Anarita Karimi Njeru principle, as restated by the Supreme Court in Communication Commission of Kenya v Royal Media Services and the Court of Appeal in Mumo Matemu, that precision is required linking the aggrieved party, the constitutional provisions and the manifestation of infringement. The Petitioner's own submissions framed purely contractual questions, showing there were no true constitutional issues for determination.

p. 7
02

Whether the withdrawal of deanship allowances and termination on 18th February 2019 was lawful

Holding

The Respondent prematurely and without due process terminated the appointment; the termination was unfair and in breach of the employment contract

Reasoning

The letter of appointment was for the combined position of Senior Lecturer and Dean of the Faculty of Law, whose benefits were an indivisible package. The contract was to lapse on 31st March 2019, so stopping the deanship allowances on 18th February 2019 was premature on two grounds: the indivisibility of the appointment and the fact that the contract had not lapsed.

p. 9
03

Whether the Petitioner absconded duty

Holding

Having found premature termination, the court found the Petitioner did not abscond duty

Reasoning

The Respondent's case rested on the Petitioner absconding from the end of January 2019, leading to dismissal after a notice to show cause went unanswered. However, because the court found the employment was prematurely terminated without due process in February 2019, the absconding allegation fell away.

p. 9

Legal principles established

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  • Where an employment package attaches allowances to a single appointment as Senior Lecturer and Dean, the appointment is indivisible and stopping the allowances before expiry of the contract without due process is unfair termination
  • A party seeking constitutional relief must plead with precision the constitutional provision, the manner of violation and the jurisdictional basis

Court orders

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  1. 1.Payment of the shortfall in the Petitioner's salary for February and March 2019 in the sum of Kshs.430,896.00
  2. 2.Compensation of four months' gross salary in the sum of Kshs.1,432,000.00
  3. 3.Total award of Kshs.1,862,896.00
  4. 4.Interest at court rates on item (i) from date of suit and on item (ii) from date of judgment
  5. 5.Respondent to pay the Petitioner's costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 20(1), 22(1), 23(1), 23(3), 24(1), 24(2), 25, 27(1), (2), (5), 28, 29(d), (f), 30(1), (2), 33(1)(c), 41(1), 41(2)(a), (b), 43(1), 45(1), 47(1), (2), 48, 50(1), (2), 159(2)(c), 159(2)(d), 165
  • Employment Act 2007
  • Universities Act No. 42 of 2012Sections 60, 62, 63
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (12)

  • CMC Aviation Limited v Mohamed Noor
    (2015) eKLR
  • Kenfreight (E.A.) Limited v Benson K. Nguti
    [2019] eKLR
  • Magare Gikenyi J. Benjamin v County Government of Nakuru & 4 others
    [2020] eKLR
  • Jonathan Spangler v Centre for African Family Studies (CAFS)
    [2017] eKLR
  • Geoffrey Muthiga Kabiru & 2 others v Samuel Munga Henry & 1756 others
    [2015] eKLR
  • Fursys (Kenya) Limited v Southern Credit Banking Corporation Limited
    [2015] eKLR
  • Janet Nyandiko v Kenya Commercial Bank Limited
    [2017] eKLR
  • Herbert Hahn v Amrik Singh
    [1985] eKLR
  • Anarita Kirimi Njeru v Attorney General
    (1979) KLR 154 (also cited as Annarita Karimi Njeru v. Republic)
  • Meme v Republic
    [2004] eKLR
  • Communication Commission of Kenya & 5 others v Royal Media Services Limited & 5 others
    [2014] eKLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR
Jurisdiction invoked
Articles 22(1), 23(1) and 23(3) of the Constitution of Kenya, 2010 (enforcement of Bill of Rights), read with 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, "Maurice Ajwang Owuor v Catholic University of Eastern Africa [2021] KEELRC 425 (KLR)", Case Analysis (2021). Petition No. 86 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/425/eng@2021-11-12

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