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ELRCPartially AllowedPetition dated 12th January 2023· [2023] KEELRC 3246 (KLR)

Alwala v Kenya University Staff Union (Petition 1 of 2023) [2023] KEELRC 3246 (KLR)

Employment and Labour Relations Court of Kenya
7 December 2023
6,123 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that suspending a union official without first hearing his side violated his rights, cancelled the suspension and awarded him Kshs. 300,000.

What this practically means

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Executive summary

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The Petitioner, Branch Secretary of the KUSU-Kibabii University Branch and an employee of Kibabii University, challenged his 90-day suspension from office by the Respondent union's National Governing Council (NGC) pursuant to its resolution of 20th December 2022. The suspension followed his interruption of the plenary of the 16th Annual Delegates Conference on 9th December 2022, when he sought guidance on the implementation of Justice Maureen Onyango's judgment voiding the union's later constitution and reinstating the 3rd April 2013 constitution. He was suspended without prior notice or hearing, the letter indicating he would be heard at 'an appropriate time'. The court framed four issues: jurisdiction/exhaustion, the constitutional petition threshold, breach of the right to fair hearing, and entitlement to reliefs. It held jurisdiction was properly invoked because the petition attacked the legality and process of the suspension rather than the substantive allegations, and the internal appeal to the Annual Delegates Conference was not an effective remedy. The petition satisfied the Anarita Karimi Njeru threshold. On the merits, the court found the NGC usurped the Executive Committee's role, suspended the Petitioner without the seven days' written notice of allegations and hearing required by Article 20 of the 2013 union constitution, and without NEC recommendation, thereby violating his rights to fair administrative action (Article 47) and fair labour practices (Article 41). The petition was allowed: the suspension was declared unlawful, null and void; compensation of Kshs. 300,000 awarded; reinstatement ordered within 14 days; and the Respondent ordered to bear costs.

Key legal issues

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01

Exhaustion of internal dispute resolution mechanisms

Holding

Jurisdiction was properly invoked because the petition challenged the legality of the suspension process, not the substantive allegations, and the appeal route to the Annual Delegates Conference was not an effective remedy

Reasoning

The Respondent had already breached its own constitution by suspending the Petitioner without NEC recommendation or seven days' notice. Requiring the Petitioner to wait for the Annual Delegates Conference, held annually, to complain of an illegal suspension would be impracticable. The court adopted the principle that the party claiming non-exhaustion must prove the remedy was effective and capable of redress.

p. 9
02

Threshold of a constitutional petition

Holding

The petition met the Anarita Karimi Njeru threshold despite not setting out the infringed Articles in the body of the petition, since they were identified on the title and the violation was pleaded with reasonable precision

Reasoning

The Petitioner pleaded that his rights to fair administrative action under Article 47 and fair labour practices under Article 41 were violated by suspension without hearing contrary to the union constitution. The court noted Articles 230(4)&(5) were irrelevant but this did not defeat the petition. The required link between party, provisions and infringement was established.

p. 11
03

Right to fair hearing before suspension

Holding

The suspension violated the Petitioner's right to a fair hearing and fair administrative action as the NGC suspended him without the notice and hearing required by the union constitution and Article 47

Reasoning

The 2013 union constitution required a seven days' written notice of allegations, appearance before the Executive Committee, whose recommendation would go to the NGC. Instead, the NGC usurped the Executive Committee's role, suspended the Petitioner for 90 days, and left the hearing to an unspecified future date. The suspension preceded the hearing, contrary to the prescribed process and natural justice.

p. 12

Legal principles established

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  • Where an organisation's constitution prescribes a disciplinary procedure, the organisation must follow it before taking disciplinary action and cannot suspend first and hear later
  • The exhaustion doctrine does not apply where the challenge is to the legality and process of the decision rather than the substantive allegations, and the internal remedy is ineffective
  • A party claiming non-exhaustion must demonstrate the internal remedy was effective, accessible and capable of providing redress

Court orders

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  1. 1.A Declaration that the decision of the Respondent's National Governing Council sitting of 20th December 2022 suspending the Petitioner for 90 days is unlawful, unconstitutional, null and void and of no consequence
  2. 2.A Declaration that the suspension violates the Petitioner's fundamental rights and freedoms, with compensation of Kshs. 300,000/- awarded
  3. 3.An Order that the Petitioner is reinstated back into office to serve the remaining period of his tenure unless removed or suspended through lawful means, with the Secretary General to facilitate reinstatement within 14 days
  4. 4.The Respondent to bear costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41(1)
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 27
  • Constitution of Kenya, 2010Article 159(1) & (2)
  • Constitution of Kenya, 2010Article 162(2)
  • Constitution of Kenya, 2010Article 165
  • Constitution of Kenya, 2010Article 230(4) & (5)
  • Constitution of Kenya, 2010Articles 2, 22(1), 23, 48
  • Kenya Universities Staff Union Constitution (registered 3rd April 2013)Article 20 (Discipline), Articles 8 and 19

Cases cited (10)

  • Francis Cheng'oli & 2 others v Kenya Universities Staff Union [2022] eKLR (Petition No. E026 of 2021)
  • Geofirey Muthinja & Another v Samuel Muguna Henry & 1756 others (2015) eKLR
  • Rich Productions ltd v Kenya pipeline company & Another (2014) eKLR
  • Kebeso David V Kenyatta University & 3 others (2017) eKLR
  • CASE OF SHKALLA v. ALBANIA (Application no. 26866/05)
  • Christian Juma Wabwire V Attorney General (2019) eKLR
  • Anarita Karimi Njeru (1979) eKLR
  • Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR
  • Nancy Makokha Baraza V Judicial Service Commission & 9 others (201) eKLR
  • Evan Rees and others v Richard Alfred Crane (1994) 2 WL
Jurisdiction invoked
Articles 2, 23, 41, 47, 48 and 162(2) of the Constitution of Kenya (employment and labour relations jurisdiction)

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, "Alwala v Kenya University Staff Union (Petition 1 of 2023) [2023] KEELRC 3246 (KLR)", Case Analysis (2023). Petition dated 12th January 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3246/eng@2023-12-07

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