Agong v Jaramogi Oginga Odinga University of Science & Technology (JOUST) & 3 others (Cause E074 of 2023) [2024] KEELRC 1209 (KLR)
The bottom line
#Kenya's Employment Court refused to enforce a university Vice-Chancellor's exit package because he hid a circular invalidating it, but ordered a Kshs 329,150 deduction repaid.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there is a legally and procedurally concluded employment contract between the Claimant and the 3rd Respondent
- 2.Whether the unilateral review of the Claimant's remuneration despite the subsistence of a duly executed employment contract amounts to unfair, irregular and unconstitutional labour practice on the part of the Respondents
- 3.Whether the gratuity payments previously made to the Claimant were procedural
- 4.Whether the recovery of the Claimant's gratuity for the June 2023 salary by the 1st Respondent amounts to unfair, illegal and unconstitutional labour practice
- 5.Who shall bear the costs of the suit
Key legal issues
#Enforceability of the exit package in the Claimant's 2018 contract
The exit package was unenforceable because the Claimant, who knew of the 2015 Circular barring exit packages, did not disclose it to the University Council during negotiations
The Court distinguished the Magoha and Tuitoek lines of authority. Unlike Prof Tuitoek, the Claimant knew of the 14 May 2015 Circular well before 2018, having applied it to his deputies. As CEO he negotiated the renewal without disclosing the invalidation of exit packages, so he did not come to Court with clean hands and the package could not be enforced.
Lawfulness of the deduction of Kshs 329,150/- from the Claimant's dues
The deduction was unlawful because the policy clause relied on by the University was not produced in evidence
The University justified the deduction as recovery of excess gratuity based on clause 19 of an October 2018 Policy. However, the Respondents did not place a copy of that Policy before the Court; the extract of the Terms and Conditions of Service for Senior Management Staff did not include the clause. Without proof of the contractual basis, the deduction could not stand.
Legal principles established
#- An exit package negotiated by a public officer who was aware of a Circular invalidating such packages, without disclosure to the other contracting party, is unenforceable for lack of clean hands
- A salary deduction not supported by the contract or a policy produced before the Court is unlawful
Court orders
#- 1.A declaration that the exit package was/is unenforceable in the case of the Claimant
- 2.Reimbursement to the Claimant of Kshs 329,150/- deducted from his dues
- 3.Each party to bear own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment and Labour Relations Court Act; Employment Act, 2007); no specific provision cited
Relief refused
#Enforcement of the exit package (retention of Vice-Chancellor salary, house allowance and benefits)
The Claimant, as CEO, knew of the 14 May 2015 Circular invalidating exit packages and did not disclose it to the University Council when negotiating the 2018 contract; the package was founded on illegality
Claims of unfair labour practice and breach of fair administrative action in respect of the exit package
The Claimant's failure to disclose the Circular disentitled him from enforcing the package
Costs
Each party to bear own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Court, therefore, concludes that the exit package was/is unenforceable in the case of the Claimant.
The Claimant failed to bring to the attention of the University Council material and relevant information concerning his terms and conditions of service (invalidation of exit package) to enable the Council to make an informed decision and negotiate with him on equal terms.
The Court, in the circumstances finds that the deduction was unlawful and not supported by the contract in place.
The Claimant has succeeded partly. Each party to bear own costs.
Issues in the judgment
#The judgment's formatting of the Claimant's issues is confused: paragraph 17 is blank and the listed issues appear under paragraph 18, and the number of issues announced (4) does not match the five listed
The Respondents are described inconsistently between the claim as filed (Jaramogi University of Science and Technology, Vice Chancellor, the University Council and the Chief Finance Officer) and references to the 1st and 3rd Respondents
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Agong v Jaramogi Oginga Odinga University of Science & Technology (JOUST) & 3 others (Cause E074 of 2023) [2024] KEELRC 1209 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1209/eng@2024-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.