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ELRCPartially AllowedNot stated in the judgment as provided· [2024] KEELRC 2022 (KLR)

Okeyo v Maseno University & another (Cause E082 of 2023) [2024] KEELRC 2022 (KLR)

Employment and Labour Relations Court
25 July 2024
2,311 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered Maseno University to reinstate a lecturer it unlawfully sacked for running for a trade union leadership position.

What this practically means

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Executive summary

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Dr Stephen Onyango Okeyo, a physics lecturer at Maseno University, sued the University challenging his summary dismissal of 28th February 2023, which followed his election as Secretary General of UASU after his earlier 2022 termination had been revoked on appeal and he was reinstated on condition he resigned from union chapter leadership. He sought declarations of unfairness, reinstatement or alternatively Kshs 3,370,590 in compensation, a certificate of service, costs and interest. The Respondents maintained the dismissal was lawful, being a consequence of his breach of reinstatement conditions and tarnishing of the University's image. The court framed two issues: the lawfulness of the dismissal and entitlement to remedies. On procedure, it found that although the first dismissal followed due process, the reinstatement on appeal closed that matter, and no show-cause notice or hearing preceded the second dismissal, contravening Section 41 of the Employment Act. On substance, it held that contesting a union elective post cannot be a valid reason for dismissal, being protected by Article 41(2)(c) of the Constitution and Section 4(2)(d) of the Labour Relations Act, and the reinstatement condition to that effect was null and void; the alleged disparaging remarks were unproven. The compensation alternative was therefore not pursued, reinstatement being deemed feasible. The claim partially succeeded: the court ordered unconditional reinstatement without loss of salary and allowances but made no order on costs, and did not address the certificate of service or interest prayers.

Key legal issues

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01

Procedural fairness of the summary dismissal of 28th February 2023

Holding

The dismissal was unprocedural and unlawful as no show-cause notice or disciplinary hearing was afforded

Reasoning

Section 41 of the Employment Act requires an employer to hear and consider representations before termination or summary dismissal. The initial 2022 dismissal followed due process, but that process concluded with reinstatement on appeal. The second dismissal rested on no new charges and no hearing, violating the statutory minimum and rendering it unprocedural and unlawful.

p. 4
02

Substantive fairness of the reason for dismissal

Holding

Contesting a union elective post is not a valid reason for dismissal; the reinstatement condition barring union participation was void

Reasoning

Sections 43 and 45(2) of the Employment Act place the burden on the employer to prove valid and justified reasons. The stated reason was the Claimant's election as union Secretary General, contrary to Article 41(2)(c) of the Constitution and Section 4(2)(d) of the Labour Relations Act. The reinstatement condition was null and void, and the alleged disparaging remarks were not proven.

p. 4
03

Whether reinstatement was an appropriate remedy

Holding

Reinstatement was feasible given the employer (a public entity) was largely at fault and no practical impediment was shown

Reasoning

Applying the grounds in Kenya Airways Ltd v Alex Wainaina Mbugua and the practicability test, the court found the Respondents had not demonstrated an irretrievable breakdown or uncooperative conduct. As a public entity largely at fault, reinstatement without loss of salary and allowances was deemed feasible, following National Bank of Kenya v Samuel Nguru Mutonya.

p. 5

Legal principles established

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  • Even in instances of summary dismissal, the employee is entitled to a hearing in accordance with Section 41 of the Employment Act.
  • A prior dismissal closed by reinstatement on appeal cannot ground a later dismissal without fresh notice and a fresh hearing.
  • Seeking an elective post in a trade union cannot be a valid reason for dismissal; workers' rights to participate in union activities are constitutionally protected.
  • A contractual condition barring participation in union activities is null and void as antithetical to the Constitution and the Labour Relations Act.

Court orders

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  1. 1.The Claimant is reinstated to the position he held prior to dismissal without loss of salary and allowances
  2. 2.No orders as to costs

Authorities

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Legislation

  • Employment Act, 2007Section 41, Section 41(2), Sections 43 and 45(2)
  • Constitution of Kenya, 2010Article 41(2)(c)
  • Labour Relations ActSection 4(2)(d)
  • Maseno University statuteClause 18.3(d)

Cases cited (8)

  • Postal Corporation of Kenya v Andrew K. Tanui
    (2019) eKLR
  • South Nyanza Sugar Company v Leonard O. Arera
    [2020] eKLR
  • Pius Kimaiyo Langat v Co-operative Bank of Kenya
    (2017) eKLR
  • Bunny Industries Limited v Tailors & Textiles Workers Union
    (Civil Appeal 386 of 2017) [2022] KECA 857 (KLR)
  • Kenya Airways Limited v Alex Wainaina Mbugua
    [2019] eKLR
  • Kenya Airways Limited v Allied & Aviation Workers Union Kenya & 3 others
    Civil Appeal No 43 of 2013
  • New Zealand Educational Institute v Board of Trustees of Auckland Normal Intermediate School
    [1994] 2 ERNZ 414
  • National Bank of Kenya v Samuel Nguru Mutonya
    [2019] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction under Article 162(2) of the Constitution and the Employment Act, 2007 (as inferred from the subject matter; the judgment does not expressly cite the provision)

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, "Okeyo v Maseno University & another (Cause E082 of 2023) [2024] KEELRC 2022 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2022/eng@2024-07-25

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