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ELRCDismissedNot stated in the judgment as provided· [2024] KEELRC 2324 (KLR)

Wambua v South Eastern Kenya University & 3 others (Petition 4 of 2021) [2024] KEELRC 2324 (KLR)

Employment and Labour Relations Court
25 September 2024
MOMAUREEN ONYANGO
2,541 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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The Employment Court dismissed both preliminary objections, confirming that unfair termination claims belong in the ELRC and respondents must prove internal appeal requirements.

What this practically means

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Executive summary

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The Petitioner, a former employee of South Eastern Kenya University (1st and 3rd Respondents), filed a petition seeking declarations that her summary dismissal violated Articles 27, 28, 41, 47 and 50 of the Constitution, orders of certiorari to quash the dismissal, mandamus to compel reinstatement, prohibition against refilling her position, and alternatively 12 months' compensation. The dispute arose from allegations that she embezzled funds of the 2nd Respondent's Sacco. Two preliminary objections were canvassed by written submissions. The 1st and 3rd Respondents argued the Petitioner failed to exhaust internal disciplinary mechanisms, specifically an appeal to the Staff Appeals Committee under Part VII of the University Statutes. The court held the doctrine of exhaustion applies where an internal mechanism exists, but the Respondents failed to place proof of that obligation on record, having attached only extracts showing committee compositions. That objection was dismissed with costs. The 2nd Respondent argued the court lacked jurisdiction over the Sacco membership and loan disputes, which section 76 of the Co-operative Societies Act assigns to the Co-operative Tribunal. The court held the petition's prayers relate exclusively to termination of employment and employment remedies, not the business of a co-operative society, so a termination case cannot be heard by the Tribunal and falls within the ELRC's exclusive jurisdiction. That objection was also dismissed with costs. Both preliminary objections were dismissed with costs to the Petitioner; the petition itself proceeds to hearing.

Key legal issues

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01

Whether the 1st and 3rd Respondents' preliminary objection on exhaustion of internal disciplinary mechanisms was proved

Holding

Not proved; the Respondents did not attach the statutory provisions establishing an obligation to appeal, only committee compositions, so the objection was dismissed.

Reasoning

The court acknowledged the exhaustion doctrine but required proof of the internal mechanism said to bar the suit. The 1st and 3rd Respondents filed only extracts of the University Statutes showing committee composition, not provisions on the disciplinary process or appeal obligation. Without proof of the obligation to appeal to the Staff Appeals Committee, the objection failed and was dismissed with costs.

p. 5
02

Whether the 2nd Respondent's preliminary objection on jurisdiction under section 76 of the Co-operative Societies Act was merited

Holding

Not merited; the petition concerns termination of employment, not the business of a co-operative society, hence outside the Co-operative Tribunal's jurisdiction.

Reasoning

Section 76 of the Co-operative Societies Act vests in the Tribunal disputes concerning the business of a co-operative society, including claims by or against members for debts. The petition's prayers relate exclusively to dismissal from employment and employment remedies. The court held that a termination case cannot be heard by the Co-operative Tribunal and lies within the ELRC's exclusive jurisdiction, dismissing the objection with costs.

p. 6

Legal principles established

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  • Where an internal dispute resolution mechanism is provided in the Constitution, statute or agreement, an aggrieved party must exhaust it before seeking the court's intervention.
  • A party relying on internal disciplinary mechanisms as a bar to a suit must place proof of those obligations on record.
  • A dispute over termination of employment does not concern the business of a co-operative society and falls outside section 76 of the Co-operative Societies Act; such suits are within the exclusive jurisdiction of the Employment and Labour Relations Court.

Court orders

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  1. 1.Dismissal of the preliminary objection dated 20th December 2021 filed by the 1st and 3rd Respondents with costs to the Petitioner
  2. 2.Dismissal of the preliminary objection dated 16th February 2022 filed by the 2nd Respondent with costs to the Petitioner
  3. 3.Both preliminary objections dismissed with costs to the Petitioner

Authorities

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Legislation

  • Constitution of KenyaArticles 27(1),(2)&(3), 28, 41(1), 47, 48, 49, 50(1)
  • Co-operative Societies ActSection 76(1) and (2)
  • South Eastern Kenya University StatutesPart VII

Cases cited (5)

  • Mukhisa Biscuits v West End Distributors
    (1973) EA
  • Savraj Sing Chana v Diamond Trust Bank (Kenya) Limited & Another
    (2020) eKLR
  • Cortec Mining Kenya Limited v Cabinet Secretary Ministry of Mining and 9 Others
    (2017) eKLR
  • Kenya Revenue Authority and 5 others v Keroche Industry Limited
    CA No. 2 of 2008
  • William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties)
    (2020) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes under Article 162(2) of the Constitution (as invoked by parties' submissions on the court's original and appellate jurisdiction over employment disputes)

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, "Wambua v South Eastern Kenya University & 3 others (Petition 4 of 2021) [2024] KEELRC 2324 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2324/eng@2024-09-25

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