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ELRCPartially AllowedNot stated in the judgment· [2024] KEELRC 1209 (KLR)

Agong v Jaramogi Oginga Odinga University of Science & Technology (JOUST) & 3 others (Cause E074 of 2023) [2024] KEELRC 1209 (KLR)

Employment and Labour Relations Court
22 May 2024
RSRadido Stephen
2,457 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court refused to enforce a university Vice-Chancellor's exit package because he hid a circular invalidating it, but ordered a Kshs 329,150 deduction repaid.

What this practically means

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Executive summary

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The Claimant, a former Vice-Chancellor of Jaramogi Oginga Odinga University of Science and Technology, sued the University, its Vice-Chancellor, Council and Chief Finance Officer after his exit package, agreed in his 2018 renewal contract, was not implemented following the end of his second term on 19 June 2023. The State Corporations Advisory Committee advised that the package was irregular under a Circular from the Head of the Public Service dated 14 May 2015 directing that outgoing Vice-Chancellors revert to their pre-appointment terms. The Claimant argued the package was contractual, that its unilateral withdrawal was an unfair labour practice and breached fair administrative action, relying on the Magoha and Tuitoek decisions. The Respondents contended the package was founded on illegality, invoking ex dolo malo, non oritur actio. The Court found the Claimant, as CEO, knew of the 2015 Circular and had applied it to his deputies, yet negotiated the 2018 renewal without disclosing it to the Council, distinguishing Tuitoek. The exit package was therefore unenforceable. However, the University's deduction of Kshs 329,150/- as excess gratuity was unlawful because the policy clause relied upon was not produced in evidence. The Claimant succeeded partly: the deduction was ordered reimbursed, the exit package was declared unenforceable, and each party was ordered to bear its own costs.

Key legal issues

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01

Enforceability of the exit package in the Claimant's 2018 contract

Holding

The exit package was unenforceable because the Claimant, who knew of the 2015 Circular barring exit packages, did not disclose it to the University Council during negotiations

Reasoning

The Court distinguished the Magoha and Tuitoek lines of authority. Unlike Prof Tuitoek, the Claimant knew of the 14 May 2015 Circular well before 2018, having applied it to his deputies. As CEO he negotiated the renewal without disclosing the invalidation of exit packages, so he did not come to Court with clean hands and the package could not be enforced.

p. 5
02

Lawfulness of the deduction of Kshs 329,150/- from the Claimant's dues

Holding

The deduction was unlawful because the policy clause relied on by the University was not produced in evidence

Reasoning

The University justified the deduction as recovery of excess gratuity based on clause 19 of an October 2018 Policy. However, the Respondents did not place a copy of that Policy before the Court; the extract of the Terms and Conditions of Service for Senior Management Staff did not include the clause. Without proof of the contractual basis, the deduction could not stand.

p. 6

Legal principles established

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  • An exit package negotiated by a public officer who was aware of a Circular invalidating such packages, without disclosure to the other contracting party, is unenforceable for lack of clean hands
  • A salary deduction not supported by the contract or a policy produced before the Court is unlawful

Court orders

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  1. 1.A declaration that the exit package was/is unenforceable in the case of the Claimant
  2. 2.Reimbursement to the Claimant of Kshs 329,150/- deducted from his dues
  3. 3.Each party to bear own costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment and Labour Relations Court Act; Employment Act, 2007); no specific provision cited

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, "Agong v Jaramogi Oginga Odinga University of Science & Technology (JOUST) & 3 others (Cause E074 of 2023) [2024] KEELRC 1209 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1209/eng@2024-05-22

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