Alwala v Kenya University Staff Union (Petition 1 of 2023) [2023] KEELRC 3246 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Exhaustion of internal dispute resolution mechanisms
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
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.
Threshold of a constitutional petition
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
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.
Right to fair hearing before suspension
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
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.
Legal principles established
#- 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
#- 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.A Declaration that the suspension violates the Petitioner's fundamental rights and freedoms, with compensation of Kshs. 300,000/- awarded
- 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.The Respondent to bear costs of the petition
- Jurisdiction invoked
- Articles 2, 23, 41, 47, 48 and 162(2) of the Constitution of Kenya (employment and labour relations jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.