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ELRCDismissed· [2024] KEELRC 2255 (KLR)

Omach v Universities Academic Staff Union (UASU) & another (Employment and Labour Relations Cause E137 of 2024) [2024] KEELRC 2255 (KLR)

Employment and Labour Relations Court
19 September 2024
BMB. O. M. Manani
2,160 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, employed as an Office Administrator by the 2nd Respondent from 1st August 2003, was served with a notice to show cause in December 2023 and suspended from duty on 4th January 2024 without pay. Together with his main claim he sought interim orders: lifting the suspension, release of withheld salary, and a bar on recruiting his replacement. While the application was pending, the Respondent invited him to a disciplinary hearing fixed for 9th April 2024; he declined to attend by letter of 8th April 2024, and the Disciplinary Committee dismissed him in his absence and hired a replacement in acting capacity. The Respondent argued the application had been overtaken by events. The Claimant countered that his pending internal appeal kept the matter alive and relied on Giella v Cassman Brown for the interlocutory reliefs. The court, Manani J, held that the termination on 9th April 2024 crystallised the employment relationship, rendering the challenge to the suspension moot; an appeal does not suspend the effectiveness of a termination. The salary request was characterised as a mandatory injunction, refused absent exceptional circumstances at interlocutory stage, with the Respondent's invitation to undergo clearance before release of dues held reasonable. The bar on filling the position could not issue because the pleadings were never amended to seek reinstatement. The court further held, applying Gladys J Cherono, that disciplinary processes and court proceedings are mutually exclusive and may proceed concurrently absent a restraining order. The application dated 20th February 2024 was dismissed with costs to the Respondents.

Key legal issues

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01

Mootness of the suspension challenge

Holding

The application to lift the suspension was overtaken by events following dismissal and is moot; the Claimant should have amended his pleadings.

Reasoning

The court found the decision to terminate the contract on 9th April 2024 crystallised the matter, making the suspension dispute otiose. An internal appeal, even if demonstrated on record, would not suspend the effectiveness of the termination. The proper course was amending pleadings to reflect the subsequent events rather than pressing the original application.

p. 4
02

Mandatory injunction at interlocutory stage for salary arrears

Holding

Refused; no exceptional circumstances were pleaded or demonstrated to warrant a mandatory order at interlocutory stage.

Reasoning

Relying on Kenya Breweries Ltd v Okeyo, the court agreed the request was in the nature of a mandatory injunction, which seldom issues at interlocutory stage except for exceptional reasons. The employer's position that it would release dues upon clearance was held reasonable, as termination stands as legitimate until successfully challenged.

p. 4
03

Bar on filling the Claimant's position

Holding

Refused because the pleadings were not amended to include reinstatement.

Reasoning

The prayer was originally tied to the suspension dispute. With the contract terminated and no amended pleadings seeking reinstatement, the court could not restrain the employer from filling a vacancy whose departure legitimacy was not an issue for determination.

p. 4
04

Concurrency of disciplinary process and court proceedings

Holding

An employer may process a disciplinary case concurrently with court proceedings unless restrained by a court order.

Reasoning

Relying on Gladys J Cherono v Board of Trustees NSSF, the court held that disciplinary processes at the workplace and court proceedings are mutually exclusive and can be processed concurrently. Absent a restraining order, the employer had no obligation to await the outcome of the case before conducting the disciplinary hearing.

p. 5

Legal principles established

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  • A termination decision crystallises once rendered and is not suspended by an appeal; it remains effective unless upset on appeal.
  • Workplace disciplinary processes and court proceedings are mutually exclusive and may be processed concurrently absent a restraining order.
  • Until termination is successfully challenged, the law considers it legitimate and the parties should proceed to clearance for terminal dues.

Court orders

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  1. 1.The application dated 20th February 2024 is dismissed with costs to the Respondents

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) RulesRule 28(3)

Cases cited (4)

  • Giella v Cassman Brown
    (1973) E.A 358
  • Nyaga v County Sacco Society Ltd
    (Cause E006 of 2022) [2023] KEELRC 1060 (KLR) (27 April 2023) (Ruling)
  • Kenya Breweries Limited & another v Washington O. Okeyo
    [2002] eKLR
  • Gladys J Cherono v Board of Trustees Nssf & another
    [2021] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (ELRC Procedure Rules referenced); specific enabling provision not cited in the judgment

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, "Omach v Universities Academic Staff Union (UASU) & another (Employment and Labour Relations Cause E137 of 2024) [2024] KEELRC 2255 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2255/eng@2024-09-19

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