Theuri v Jomo Kenyatta University of Agriculture and Technology (Cause E173 of 2023) [2023] KEELRC 2100 (KLR)
The bottom line
#A Kenyan court let a sacked professor skip his university's stalled internal appeal, but refused to stop the university from refilling his job.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELRC has jurisdiction despite the pending internal appeal
The court has jurisdiction; the applicant is exempted from exhausting the internal appellate process under Section 9(4) of the Fair Administrative Action Act, 2015
The Respondent's appeal mechanism was dormant - the applicant's appeal filed on 24th November 2022 remained unheard over 7 months later with no timelines offered, ostensibly due to the absence of a council. Upholding exhaustion would leave the applicant without audience and violate Article 47(1) guaranteeing expeditious, efficient, lawful, reasonable and procedurally fair administrative action.
Whether the applicant established a prima facie case with probability of success
Yes - the material showed possible non-compliance with fair hearing requirements necessitating a substantive response
The court found the documents suggested the Respondent may not have complied with the law in its totality: it was unclear whether witnesses testified and were cross-examined and whether documentary evidence was availed to the applicant. That justified finding a genuine and arguable case calling for an explanation from the Respondent.
Whether the applicant would suffer irreparable injury not compensable by damages
No - the alleged prejudice to the reinstatement prayer was not shown to be unquantifiable in monetary terms
Although the applicant deposed that failure to preserve the Associate Professor position would defeat the prayer for reinstatement, he did not demonstrate how that 'great prejudice' could not be quantified in monetary terms. The second Giella requirement therefore failed.
Whether the balance of convenience favoured the applicant
No - the applicant did not demonstrate comparative inconvenience
Citing Bryan Chebii Kipkoech v Barnabas Tuitoek Bargoria, the court held the applicant had to show comparative mischief from withholding the injunction would be greater than from granting it. Having failed on irreparable injury, the balance of convenience could not favour him either.
Legal principles established
#- Jurisdiction is everything and a court without jurisdiction must down its tools
- The exhaustion doctrine is subject to exceptions where the court may find its upholding unhelpful in the resolution of a dispute
- A court may exempt a party from exhausting an internal remedy where there is no guarantee as to when the internal appeal will be heard
Court orders
#- 1.The Respondent's preliminary objection on jurisdiction is dismissed
- 2.The applicant is exempted from the obligation to exhaust the Respondent's internal appellate process pursuant to Section 9(4) of the Fair Administrative Action Act, 2015
- 3.The Notice of Motion dated 13th March 2023 seeking a temporary injunction is dismissed
- 4.No orders as to costs
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution of Kenya, 2010 and Section 12 of the Employment and Labour Relations Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Theuri v Jomo Kenyatta University of Agriculture and Technology (Cause E173 of 2023) [2023] KEELRC 2100 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2100/eng@2023-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.