1. On 27 February 2025, Prof Amukowa Anangwe (the 2nd Respondent) as Chair of the Council of the University of Nairobi wrote to Dr Maloba Wekesa (the Claimant) to notify him that the Council had resolved to suspend him from work for 3 months to facilitate investigations into allegations that he had been engaged in gross misconduct.
2. The Claimant, being aggrieved, sued the University of Nairobi (the University) and the 2nd Respondent on 6 March 2025, alleging that the suspension was unlawful and a violation of his legal rights.
3. Filed together with the Statement of Claim was a Motion seeking orders:
(i) …
(ii) …
(iii) …
(iv) THAT this Honourable Court be pleased to issue an order of stay of enforcement of the letter and directives of the Respondents dated 27th February 2025 and received by the Claimant on 5th March 2025 pending the hearing and determination of this Claim or further orders of the Court.
(v) THAT this Honourable Court be pleased to issue an order of temporary injunction restraining the Respondents either by themselves or their agents, servants or any person acting on their behalf from proceeding with any disciplinary proceedings, suspension or in any manner interfere with the employment of the Claimant/applicant herein on the issues raised in the Respondents letter dated 27th February 2025 pending the hearing and determination of this Claim.
(vi) THAT this Honourable Court proceeds and issues any other or further orders in the interest of justice and ensures expeditious hearing and disposal of the application and the Claim herein.
(vii) THAT the costs of this application be provided for.
4. The grounds in support of the Motion were that the Claimant, a Senior Lecturer is currently serving as the Secretary of the Universities Academic Staff Union – University of Nairobi chapter; in that capacity, the Claimant had raised concerns with the 24-month Transformation Strategy advanced by the Respondents including through Court cases; that the suspension was meant to intimidate the Claimant; the suspension was on account of the Claimant’s performance of duties as a trade union official; the 2nd Respondent did not have the power to suspend the Claimant; the University Council had not met or resolved to have the Claimant suspended and that clause 6(b) of the collective bargaining agreement between the University and Universities Academic Staff Union limited suspensions to 1 month.
5. The 2nd Respondent filed a replying affidavit on 24 March 2025 in opposition to the Motion.
6. In the affidavit, the 2nd Respondent deponed that he was improperly joined to the proceedings; the Claimant, an employee, was seeking blanket immunity from disciplinary proceedings; the Respondents had genuine allegations against the Claimant; the Council had resolved that investigations into the allegations be conducted; the orders sought were premature; that investigations could only be conducted with the Claimant being away from work so that he does not interfere with the investigations; the Claimant had unlawfully obtained and filed in Court a letter written by the 2nd Respondent; the decision to suspend the Claimant was made during the 143rd Council meeting held on 31 January 2025 and confirmed in the 146th meeting and anchored on Article 18(9) of the University of Nairobi Charter; the Vice-Chancellor was intent on aiding the Claimant to breach his contract of service; clause 6(b) of the collective bargaining agreement relied on by the Claimant did not address the question of suspension and that the decision of the Council to suspend the Claimant found support in section 63(3) of the Universities Act, 2012.
7. The Claimant filed a further affidavit on 26 March 2025 wherein he stated that the documents alleged he obtained illegally were given to him by the Ministry of Education upon request. He also cast aspersions on whether a decision to suspend him was made during the 143rd Council meeting.
8. The Claimant filed his submissions on 17 March 2025. He reiterated the averments in the supporting affidavit.
9. The Respondents filed submissions on 24 March 2025 in which they asserted that the Claimant was seeking a blanket immunity against any disciplinary action and that the Court should not interfere with their discretion to exercise disciplinary control over the Claimant (Teachers Service Commission v Kahiro (2024) KECA 1705 (KLR).
10. The Respondents also urged that the Claimant had not met the threshold for the grant of the orders sought and that the suspension of the Claimant was not on account of his trade union activities.
11. The Interested Party filed its submissions on 4 April 2025 supporting the Claimant’s case.
12. The Court has considered the Motion, affidavits and submissions.
13. In order to succeed, the Claimant needed to establish a prima facie case. In other words, the Claimant needed to show that his suspension was not supported by the legal instruments governing the operations of the University.
14. The relationship between the Claimant as an employee and the University is governed by the contract of employment, the Universities Act, the University of Nairobi Charter, 2013, among other contractual documents.
15. Section 35(1)(a) of the Universities Act provides for the establishment of a University Council as an instrument of governance. Notably, one of the functions given to the Council is the employment of staff.
16. However, section 43 of the Act vests the day-to-day management in the Vice-Chancellor, assisted by a management board.
17. Section 14 of the University of Nairobi Charter makes the Vice Chancellor the Chief Executive Officer of the University as well as academic and administrative head, while section 18 defines the functions of the Council.
18. Clause 19 of the Collective Bargaining Agreement between the University of Nairobi Council and the Universities Academic Staff Union reposes the power to suspend an employee with the Vice-Chancellor.
19. The said collective agreement contemplates investigations prior to any disciplinary action. The Court cannot second-guess the outcome of the investigations against the Claimant. He may be vindicated, or he may be required to give explanations if charges are framed.
20. If the latter, the collective agreement and legal regime guiding disciplinary processes in this country assure employees of certain protections. That stage has not yet been reached.
21. At this interlocutory stage, there is no explanation why the suspension of the Claimant had to be under the hand of the Chair of the University Council, and not the Chief Executive of the University.
22. On that narrow ground, the Court finds that the Claimant has met the prima facie case threshold. However, the Court should not hinder the University from conducting investigations.
Orders
23. The Court orders:
(i) THAT suspension of the Claimant is hereby vacated.
(ii) The university is at liberty to continue with its investigations.
24. Costs in the cause.
2. The Claimant, being aggrieved, sued the University of Nairobi (the University) and the 2nd Respondent on 6 March 2025, alleging that the suspension was unlawful and a violation of his legal rights.
3. Filed together with the Statement of Claim was a Motion seeking orders:
(i) …
(ii) …
(iii) …
(iv) THAT this Honourable Court be pleased to issue an order of stay of enforcement of the letter and directives of the Respondents dated 27th February 2025 and received by the Claimant on 5th March 2025 pending the hearing and determination of this Claim or further orders of the Court.
(v) THAT this Honourable Court be pleased to issue an order of temporary injunction restraining the Respondents either by themselves or their agents, servants or any person acting on their behalf from proceeding with any disciplinary proceedings, suspension or in any manner interfere with the employment of the Claimant/applicant herein on the issues raised in the Respondents letter dated 27th February 2025 pending the hearing and determination of this Claim.
(vi) THAT this Honourable Court proceeds and issues any other or further orders in the interest of justice and ensures expeditious hearing and disposal of the application and the Claim herein.
(vii) THAT the costs of this application be provided for.
4. The grounds in support of the Motion were that the Claimant, a Senior Lecturer is currently serving as the Secretary of the Universities Academic Staff Union – University of Nairobi chapter; in that capacity, the Claimant had raised concerns with the 24-month Transformation Strategy advanced by the Respondents including through Court cases; that the suspension was meant to intimidate the Claimant; the suspension was on account of the Claimant’s performance of duties as a trade union official; the 2nd Respondent did not have the power to suspend the Claimant; the University Council had not met or resolved to have the Claimant suspended and that clause 6(b) of the collective bargaining agreement between the University and Universities Academic Staff Union limited suspensions to 1 month.
5. The 2nd Respondent filed a replying affidavit on 24 March 2025 in opposition to the Motion.
6. In the affidavit, the 2nd Respondent deponed that he was improperly joined to the proceedings; the Claimant, an employee, was seeking blanket immunity from disciplinary proceedings; the Respondents had genuine allegations against the Claimant; the Council had resolved that investigations into the allegations be conducted; the orders sought were premature; that investigations could only be conducted with the Claimant being away from work so that he does not interfere with the investigations; the Claimant had unlawfully obtained and filed in Court a letter written by the 2nd Respondent; the decision to suspend the Claimant was made during the 143rd Council meeting held on 31 January 2025 and confirmed in the 146th meeting and anchored on Article 18(9) of the University of Nairobi Charter; the Vice-Chancellor was intent on aiding the Claimant to breach his contract of service; clause 6(b) of the collective bargaining agreement relied on by the Claimant did not address the question of suspension and that the decision of the Council to suspend the Claimant found support in section 63(3) of the Universities Act, 2012.
7. The Claimant filed a further affidavit on 26 March 2025 wherein he stated that the documents alleged he obtained illegally were given to him by the Ministry of Education upon request. He also cast aspersions on whether a decision to suspend him was made during the 143rd Council meeting.
8. The Claimant filed his submissions on 17 March 2025. He reiterated the averments in the supporting affidavit.
9. The Respondents filed submissions on 24 March 2025 in which they asserted that the Claimant was seeking a blanket immunity against any disciplinary action and that the Court should not interfere with their discretion to exercise disciplinary control over the Claimant (Teachers Service Commission v Kahiro (2024) KECA 1705 (KLR).
10. The Respondents also urged that the Claimant had not met the threshold for the grant of the orders sought and that the suspension of the Claimant was not on account of his trade union activities.
11. The Interested Party filed its submissions on 4 April 2025 supporting the Claimant’s case.
12. The Court has considered the Motion, affidavits and submissions.
13. In order to succeed, the Claimant needed to establish a prima facie case. In other words, the Claimant needed to show that his suspension was not supported by the legal instruments governing the operations of the University.
14. The relationship between the Claimant as an employee and the University is governed by the contract of employment, the Universities Act, the University of Nairobi Charter, 2013, among other contractual documents.
15. Section 35(1)(a) of the Universities Act provides for the establishment of a University Council as an instrument of governance. Notably, one of the functions given to the Council is the employment of staff.
16. However, section 43 of the Act vests the day-to-day management in the Vice-Chancellor, assisted by a management board.
17. Section 14 of the University of Nairobi Charter makes the Vice Chancellor the Chief Executive Officer of the University as well as academic and administrative head, while section 18 defines the functions of the Council.
18. Clause 19 of the Collective Bargaining Agreement between the University of Nairobi Council and the Universities Academic Staff Union reposes the power to suspend an employee with the Vice-Chancellor.
19. The said collective agreement contemplates investigations prior to any disciplinary action. The Court cannot second-guess the outcome of the investigations against the Claimant. He may be vindicated, or he may be required to give explanations if charges are framed.
20. If the latter, the collective agreement and legal regime guiding disciplinary processes in this country assure employees of certain protections. That stage has not yet been reached.
21. At this interlocutory stage, there is no explanation why the suspension of the Claimant had to be under the hand of the Chair of the University Council, and not the Chief Executive of the University.
22. On that narrow ground, the Court finds that the Claimant has met the prima facie case threshold. However, the Court should not hinder the University from conducting investigations.
Orders
23. The Court orders:
(i) THAT suspension of the Claimant is hereby vacated.
(ii) The university is at liberty to continue with its investigations.
24. Costs in the cause.