Okeyo v Maseno University & another (Cause E082 of 2023) [2024] KEELRC 2022 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Procedural fairness of the summary dismissal of 28th February 2023
The dismissal was unprocedural and unlawful as no show-cause notice or disciplinary hearing was afforded
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.
Substantive fairness of the reason for dismissal
Contesting a union elective post is not a valid reason for dismissal; the reinstatement condition barring union participation was void
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.
Whether reinstatement was an appropriate remedy
Reinstatement was feasible given the employer (a public entity) was largely at fault and no practical impediment was shown
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.
Legal principles established
#- 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
#- 1.The Claimant is reinstated to the position he held prior to dismissal without loss of salary and allowances
- 2.No orders as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.