Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedELRC Petition No. E015 of 2022 (consolidated applications dated 28th December 2022 and 18th January 2023)· [2023] KEELRC 976 (KLR)

Malaya v Masinde Muliro University of Science and Technology (Petition E015 of 2022) [2023] KEELRC 976 (KLR)

Employment and Labour Relations Court
20 April 2023
2,722 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court cancelled orders freezing a university librarian recruitment because the employee who obtained them hid key facts from the judge.

What this practically means

#

Executive summary

#
This ruling by the Employment and Labour Relations Court at Bungoma determined two consolidated interlocutory applications in a petition by Vincent Chabini Makaya against Masinde Muliro University of Science and Technology. The Petitioner, who had acted as University Librarian for approximately seven years, obtained ex parte conservatory orders from Justice C.N. Baari on 4th January 2023 staying the University's recruitment for the substantive position and restraining victimisation. The University applied to set aside or vary those orders, alleging the Petitioner had concealed material facts: that his acting appointment lapsed on 31st October 2022, that he had himself applied for the advertised substantive position, that he had been paid acting dues, and that the Council could revise the position's qualifications. The court held that, being of equal status with Justice Baari, it could not revisit the primae facie case, irreparable harm and balance of convenience findings, as that would amount to sitting on appeal over a coordinate court; its jurisdiction lay in review on grounds of non-disclosure. Finding material non-disclosure and concealment by the Petitioner, and noting that open competitive recruitment accords with Article 10(2) national values and that the petition could be remedied by compensation damages, the court set aside the order staying the recruitment, marked the spent orders, and varied the anti-victimisation order to remain in force. No express costs order was made.

Key legal issues

#
01

Whether the ex parte conservatory orders should be set aside for non-disclosure of material facts

Holding

Yes; the Petitioner concealed that he had applied for the substantive position, that his acting appointment had expired without renewal, and that the Council could revise qualifications, and had been paid some acting dues.

Reasoning

The court adopted the principles in Republic v Vice-Chancellor Moi University that setting aside ex parte stay orders is merited on non-disclosure, concealment or misrepresentation of material facts. It found the Petitioner's claimed letter of 2nd November 2022 not evident in the court file, no renewal of the acting contract after October 2022, and a memo evidencing some payment of acting dues. These were material facts bearing on whether the recruitment should be stayed.

p. 5
02

Whether staying recruitment would render the petition nugatory

Holding

No; allowing recruitment would not render the petition nugatory as the Petitioner had participated in the recruitment and could still be compensated for any rights violations found.

Reasoning

The court held the Petition would not be rendered nugatory if recruitment proceeded, because the Petitioner had submitted an application for the position and open competitive appointment aligns with Article 10(2) national values. Any violation of rights arising from the 7-year acting tenure could be remedied by compensation damages even if the recruitment concluded.

p. 5
03

Whether acting beyond 6 months confers a right to substantive appointment

Holding

No; unlike the Judiciary policy capping acting at 18 months with confirmation, the Public Service Commission manual is silent on consequences of acting beyond 6 months.

Reasoning

The court compared Clause C14 of the Public Service Commission Human Resources Policies and Procedures Manual 2015, which caps acting allowance at six months but is silent on consequences of longer acting, with the Judiciary policy in Susan Oyatsi providing for confirmation or revertal after 18 months. The silence meant no automatic entitlement to substantive appointment accrued to the Petitioner.

p. 6

Legal principles established

#
  • Setting aside ex parte conservatory or stay orders is merited where there is non-disclosure of material facts, concealment of material documents, or misrepresentation of material facts
  • The power of review should be exercised with great caution and ordinarily only to correct an error or oversight
  • A court of equal status with the judge who issued interim orders does not revisit the primae facie case, irreparable harm and balance of convenience findings; it proceeds only on review principles, as redoing so would amount to sitting on appeal over an equal court

Court orders

#
  1. 1.Order No. 1 of the order of 3rd January 2023 marked as spent
  2. 2.Order No. 2 (conservatory order suspending the Respondent's planned recruitment for the position of University Librarian) set aside and vacated
  3. 3.Order No. 3 varied to read: 'Conservatory order is issued restraining the respondent from taking action against the Applicant nor victimizing him on account of filing the application and the petition.'
  4. 4.Order No. 4 marked as spent

Authorities

#

Legislation

  • Public Service Actsection 34(3)
  • Universities Actnot specified
  • Constitution of Kenya, 2010Article 10(2)(c)
  • Public Service Commission Human Resources Policies and Procedures Manual for the Public ServiceClause C14
  • Judiciary Human Resources Policies & Procedures Manualmaximum 18 months acting
  • Masinde Muliro University statutes and Human Resources Policies and Procedures Manualnot specified

Cases cited (4)

  • Republic v Vice-Chancellor Moi University & 3 Others Exparte Benjamin J Gikenyi Magaro
    (2018) eKLR
  • Republic v Cabinet Secretary Ministry of Labour & 2 Others Exparte Central Organization of Trade Unions (K)
    2022 eKLR
  • Bloggers Association Kenya (Bake) v Attorney General & 5 Others
    (2018) eKLR
  • Susan Oyatsi v Judicial Service Commission
    (2022) eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction of the ELRC; review of an ex parte interim order issued by a judge of concurrent jurisdiction

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Malaya v Masinde Muliro University of Science and Technology (Petition E015 of 2022) [2023] KEELRC 976 (KLR)", Case Analysis (2023). ELRC Petition No. E015 of 2022 (consolidated applications dated 28th December 2022 and 18th January 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/976/eng@2023-04-20

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