Universities Academic Staff Union (UASU) Moi University Chapter & 2 others v Moi University (Employment and Labour Relations Cause E020 of 2023) [2024] KEELRC 2751 (KLR)
The bottom line
#Moi University cannot enforce un-gazetted retirement rules against staff after the Eldoret Employment Court paused the impugned clause and retirement notices.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimants established a prima facie case warranting a temporary injunction
Yes. The Respondent did not deny that the Universities Act requires gazettement of statutes, did not deny that the Revised Statutes had not been gazetted, and adduced no evidence of submission for gazettement, while the impact on members' retirement terms was uncontroverted.
The court applied Giella v Cassman Brown and the Mrao definition of a prima facie case. The Respondent did not dispute that the Universities Act requires gazettement of university statutes, nor the averment that the Revised Statutes were not gazetted. No forwarding letter or other evidence of submission for gazettement was produced, yet implementation commenced on 1st July 2022. The claimed prejudice to members' retirement dates and benefits was uncontroverted.
Whether the Claimants would suffer irreparable injury not compensable by damages
Yes. Members stood to be forced to retire before the date provided in their terms and conditions of service and retirement benefits schemes, potentially without benefits, which the Respondent did not controvert.
The Claimants demonstrated that implementation of clause 9 of Statute XXIX altered the retirement date from the 30th of June following attainment of retirement age to the date of attainment, exposing members to early retirement without access to pension or provident fund payouts, with consequences for health and livelihoods. The Respondent offered no rebuttal to this averment, satisfying the second Giella condition.
Legal principles established
#- A university Council must approve university statutes and cause them to be published in the Kenya Gazette before implementation
- Where an applicant shows implementation of un gazetted statutes affecting members' terms of service which is not controverted, a prima facie case with a probability of success is established
Court orders
#- 1.Stay of clause 9 of Statute XXIX of Moi University Statutes, 2013 (Revised 2021) and the Retirement Notices issued to the Claimants' members pursuant to the said provision pending the hearing and determination of the suit
- 2.Costs of the application to be in the cause
- 3.Terms of retirement prior to the impugned statutes to continue in force pending further orders of the court
- 4.Any employee who was retired in accordance with the new statutes, accepted the retirement and was paid retirement benefits shall not be affected by the order
- Jurisdiction invoked
- Articles 10, 19, 20, 21, 22, 23, 27, 28, 41, 43, 47, 48, 50 and 159 of the Constitution of Kenya; sections 5 and 87 of the Employment Act, 2007; section 23 of the Universities Act, 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Universities Academic Staff Union (UASU) Moi University Chapter & 2 others v Moi University (Employment and Labour Relations Cause E020 of 2023) [2024] KEELRC 2751 (KLR)", Case Analysis (2024). Notice of Motion dated 3rd August 2023 (Eldoret ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2751/eng@2024-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.