RULING-UNIVERSITIES ACADEMIC STAFF UNION -VS- UNIVERSITY OF NAIROBI AND BRIAN OUMA

SUMMARY ruling

ELRC Cause NO. E700 of 2023

Universities Academic Staff Union –VS- University Of Nairobi and

Brian Ouma

By its Notice of Motion dated 29th August 2023 and a Memorandum of Claim of even date, the Universities Academic Staff Union filed a case against the University seeking orders to stay implementation of the University’s directive as contained in letter dated 24th July 2023 appointing Mr. Brian Ouma in the position of Chief Operations Officer, pending the hearing and determination of the claim.

The application was based on the grounds:

1. That the Chairperson of the University Council is not the Chief Executive Officer of the Respondent, is not the administrative head of the University nor is he involved in the day-to-day management of the Respondent and does not have the power to make or communicate the appointment of any staff or issue directives as per the impugned letter dated 24th July 2023;
2.  That the Chairperson of the Council does not have powers to direct any staff of the University to occupy a position in an acting capacity in perpetuity, with a view of avoiding creation of the position as by law envisaged, and competitive filling of the position, which amounts to entrenching unfair labour practices in the Respondent’s institution.
3. That the position of Chief Operations Officer was first created in an unlawful manner by the Respondent on 12th July 2021 and the acting appointment was made purely as a transitional role only for 6 months, pending the alignment of the statutory instruments to fully birth the position and ensure subsequent appointments were to be subjected to competitive recruitment.
4. That no statutory instruments have been aligned and gazetted as by law required, creating the substantive position of Chief Operations Officer, designating the actual terms of reference, reporting structures and qualifications for the holder.
5. That Section 27 of the Public Service Commission Act provides clear conditions for establishment of new offices within the Public Service, including State Corporations and towards this end, the Public Service Commission has issued Guidelines for Development and Review of Human Resource Management Instruments for State Corporations and Public Universities stating:‘…Proposals for establishment of new offices, or abolition of offices should comply with the Guidelines herewith and be submitted to the Commission for consideration and approval.
6. That the University, in a bid to create a new office of Chief Operations Officer, has never submitted the proposal for creation of the said office for approval by the Public Service Commission.
7. That the acting appointment contravenes the provisions of Section 34 of the Public Service Commission Act.
8. That the impugned letter dated 24th July 2023 has created uncertainty within the Universities Academic Staff Union’s membership, as Mr. Brian Ouma has commenced the process of abrogating to himself non-existent powers and roles.
9. That vide a memo dated 10th August 2023, Mr. Brian Ouma abrogated to himself powers to oversee all human resource functions, including recruitment, in essence seeking to oversee the recruitment of academic staff who are members of the University without the role designated as required by law and the University Charter, causing unrest within the membership of the Universities Academic Staff Union.

The University filed a replying affidavit sworn by the Chairperson of the University Council, Prof. Amukowa Anangwe, on 12th October 2023 stating that UASU had filed the suit despite having raised similar issues regarding the actions by the Respondent’s Council taken on 12th July 2021 and 20th August 2021, in respect of the governance and management reforms at the Respondent in ELRC Petition No E118 of 2021: Universities Academic Staff Union (UASU) v University of Nairobi, which has been the subject of litigation in this Court and is pending before the Court of Appeal as Civil Appeal No E771 of 2021: University of Nairobi & 2 others v Universities Academic Staff Union (UASU) & 4 others and that the issues raised by UASU in Petition No E118 of 2021, include the legality of the position of Acting Chief Operations Officer, held by the Interested Party. He contended that although disguised as a challenge to the extension of the tenure of the Interested Party as Acting Chief Operations Officer, the main issue under challenge in this suit is the creation of the position of Chief Operations Officer and enactment of the Statutes to give effect to the position.

Prof. Anangwe further stated that by a ruling dated 21st January 2022, the Court of Appeal stayed further proceedings in Petition No E118 of 2021 pending the hearing and determination of Civil Appeal No E771 of 2021 and defended the appointment of Mr. Brian Ouma to the position of Chief Operations Officer in an acting capacity pending regularisation of the University Statutes. He accused the UASU of unfairly singling out this position, without mention of other acting positions occupied by the Claimant’s members and asserted that employment of staff of the University is the mandate of the Council and not the Vice-Chancellor.

Mr. Brian Ouma filed Grounds of Opposition dated 3rd October 2023 stating that UASU had no locus standi to institute and continue the proceedings and that the suit is an abuse of the court process as it is sub judice, purporting to litigate matters which are pending determination in ELRC Petition No. 118 of 2021.

From the submissions by the parties, Linnet Ndolo, Judge on 19th December 2023 delivered a ruling withholding any further action on this matter, pending final determination of Petition No E118 of 2021pleadings and submissions filed by the parties, the first issue that emerges for determination is whether the present suit and application are sub judice on account of Petition No E118 of 2021.