Republic v Vice-Chancellor Kabianga University Wilson K. Kipngeno) & 3 others Ex parte Godffrey Nakhayo Odebero [2021] KEELRC 1697 (KLR)

The respondents objected that the applicant, being engaged on a contract of employment, should have filed a statement of claim rather than judicial review proceedings. The court rejected this, holding that the dispute involves an employer and an employee, which is exactly what Section 12 of the Employment and Labour Relations Act provides for, so the court has jurisdiction. The objection was treated as a non-issue.

The respondents invoked section 9(2) and (3) of the Fair Administrative Action Act and section 25(2) of the Employment Act, arguing the applicant should first exhaust internal dispute resolution mechanisms. The court accepted the principle but found that since the salary reduction was already a foregone case and implemented, there was nothing left to consult about and no internal mechanism capable of reversing the implemented decision.

Applying the low threshold at the leave stage, the court found the applicant had demonstrated the reduction of his salary, which is an illegality unless the requirements of Section 10(5) of the Employment Act on variation of contract were met. Whether those parameters were adhered to can only be determined if the applicant is allowed to file the judicial review application, with the respondent having an opportunity to defend it. No reason was found to deny the prayers sought.

Although leave was granted as prayed, the court expressly withheld the stay element of the second prayer. No detailed reasons were given; the judgment simply records that the order would not operate as stay, apparently because the reduction had already been implemented and the substantive motion remains the proper forum for full determination.