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ELRCPartially AllowedNotice of Motion dated 3rd August 2023 (Eldoret ELRC)· [2024] KEELRC 2751 (KLR)

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)

Employment and Labour Relations Court
7 November 2024
2,784 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimants, trade unions representing cadres of Moi University employees, moved the court by Notice of Motion dated 3rd August 2023 seeking a stay of clause 9 of Statute XXIX of the Moi University Statutes, 2013 (Revised 2021) and of Retirement Notices issued to their members pending the hearing and determination of the suit. They contended that the Revised Statutes, which altered the retirement date from the 30th of June following attainment of retirement age to the date of attainment of retirement age, had not been gazetted as required by section 23(2) of the Universities Act, yet were implemented with effect from 1st July 2022, exposing members to early retirement without pension or provident fund payouts, contrary to their legitimate expectations and terms of service. The Respondent opposed, asserting the revision aligned the statutes with section 80 of the Public Service Commission Act and its 2020 Regulations, that the unions participated in the revision, that the statutes were approved by Council on 15th December 2021 and submitted for gazettement, and that the application was overtaken by events. Applying Giella v Cassman Brown and the Mrao definition of a prima facie case, the court found the Respondent had not denied the absence of gazettement nor adduced evidence of submission for gazettement, and that the prejudice to members was uncontroverted. The application was allowed: the impugned clause and retirement notices were stayed pending determination of the suit, pre-impugned retirement terms continue in force, employees already retired and paid are unaffected, with costs in the cause.

Key legal issues

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01

Whether the Claimants established a prima facie case warranting a temporary injunction

Holding

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.

Reasoning

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.

p. 5
02

Whether the Claimants would suffer irreparable injury not compensable by damages

Holding

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.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 2.Costs of the application to be in the cause
  3. 3.Terms of retirement prior to the impugned statutes to continue in force pending further orders of the court
  4. 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

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 19, 20, 21, 22, 23, 27, 28, 41, 43, 47, 48, 50, 159
  • Employment Act, 2007Sections 5, 87
  • Universities Act, 2012Sections 23, 23(2), 34, 35
  • High Court (Practice and Procedure) RulesRule 3
  • Public Service Commission Act No 10 of 2017Section 80(1)(a) and (b)
  • Public Service Commission Regulations, 2020Section 70(1)
  • Moi University Charter (2013)null
  • Moi University Statutes, 2013 (Revised 2021)Statute XXIX, clause 9

Cases cited (6)

  • Kenei v Egerton University & another
    (2023) eKLR
  • Were Samwel & 14 others v Attorney General & 2 others
    (2017) eKLR
  • Universities Academic Staff Union (UASU) v University of Nairobi & another; Cabinet Secretary, Ministry of Education & 3 others (Interested Parties)
    (2021) eKLR
  • Paul Gitonga Wanjau v Gathuthis Tea Factory Company Limited & 2 others
    (2016) eKLR
  • Giella v Cassman Brown & Company Limited
    (1973) E A 358
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    [2003] KLR 123
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

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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, "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.