Kabue & another v Council, Egerton University & another (Judicial Review 01 of 2022) [2022] KEELRC 4129 (KLR)
The bottom line
#A Kenyan court blocked Egerton University from disciplining a lecturer for union activities, confirming public university disciplinary actions can be challenged through judicial review.
What this practically means
#Executive summary
#Key legal issues
#Whether judicial review lies in respect of disciplinary proceedings against a public university employee
Yes. The University is a public body and its organs' disciplinary powers are quasi-judicial administrative action under the Fair Administrative Action Act; the dispute transcends a private employment contract and implicates Article 41 and 47 rights.
The court accepted that judicial review is ordinarily a public law remedy not applicable to private employment contracts, agreeing with the authorities cited by the Respondents. However, Egerton University is a public body, and the disciplinary proceedings could affect the 1st Applicant's constitutional rights as employee and union official, and the union's and members' rights. The dispute concerns labour relations and constitutional and legislative rights, fitting Section 3 of the Fair Administrative Action Act, so judicial review was properly invoked.
Whether the 1st Respondent (Egerton University Council) was properly joined
Yes. The Council is the apex organ that hired the 1st Applicant and issued the show cause letters, acting as an agent of the University, and the Employment Act definition of employer includes an agent.
The court distinguished Kiama Wangai v Pamela Tsimbiri, which concerned defamation and where the Council was joined as interested party. Here the Council plays a direct and active role in employment matters, and Section 2 of the Employment Act includes agents within the definition of employer, so the Council is properly joined for employment and labour relations matters.
Whether the Applicants were entitled to an order of prohibition against the disciplinary proceedings
Yes. The charges were based on the 1st Applicant's lawful activities as a union secretary; no evidence proved she exceeded her mandate; the proceedings were discriminatory, irrational and unconstitutional under Articles 41 and 47.
The court found the 1st Applicant acted throughout in her capacity as secretary of the 2nd Applicant, with minutes authorising her. Allegations that she stormed examination rooms were unsupported by any affidavit from the affected lecturers. Continuing the disciplinary action would violate Articles 41 and 47, the Fair Administrative Action Act and Section 46 of the Employment Act; selective action against her alone was discriminatory and biased, warranting judicial intervention.
Legality of the strike and the branch union's capacity to call industrial action
Declined. Neither issue was pleaded in the motion, prior causes on the issues were withdrawn (not res judicata), and the national union was not joined.
Although both counsel invited the court to rule on these intertwined issues, the court declined because the notice of motion did not seek those determinations, the causes in which they arose were withdrawn before adjudication so Section 7 of the Civil Procedure Act did not apply, and determining weighty issues without joining the national union (UASU) would risk condemning it unheard.
Legal principles established
#- Disciplinary proceedings by a public university's organs against an employee for union activities constitute administrative action subject to Article 47 and the Fair Administrative Action Act, and are therefore properly the subject of judicial review.
- A university council acting as agent of the employer in hiring and firing is a proper party in employment and labour relations proceedings.
- Employer disciplinary action premised on lawful union activities is discriminatory, irrational and unconstitutional, and courts should intervene despite the general reluctance to interfere with employer discipline.
Court orders
#- 1.An order of prohibition restraining the Respondents by themselves, agents, servants and/or others howsoever, from conducting, holding, or carrying out disciplinary proceedings or action against the 1st Applicant scheduled for January 19, 2022 or any other date, on account of the allegations, grounds, or charges contained in the two show cause letters dated November 19, 2021 and November 30, 2021 or other notices concerning the same or similar allegations
- 2.Each party shall bear own costs for these proceedings
- Jurisdiction invoked
- Article 47 of the Constitution; Sections 8 and 9 of the Law Reform Act; Order 53 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kabue & another v Council, Egerton University & another (Judicial Review 01 of 2022) [2022] KEELRC 4129 (KLR)", Case Analysis (2022). Judicial Review Notice of Motion dated January 18, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4129/eng@2022-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.