UOE Vice-Chancellor Prof. Teresa A. O. Akenga Ph.D vowed to win a case against two senior officers she fired years ago.
The two, Deputy Vice-Chancellor in charge of Administration and Finance Prof Ezekiel Kiprop and Finance officer Mr. Hosea Sitienei, were fired for disciplinary-related reasons following student unrest in 2015.
The infamous demonstration that resulted in the loss of multi-billion property of the university was prompted by fees increment by the management.
The university’s first action after the unrest was the suspension of members of senior management, including the Deputy Vice-Chancellor.
In a memo, the VC said, “Following information reaching the University Council and the management of your involvement in the recent unrest at the university, the council in its 15th meeting of July 17, resolved to suspend you from duty with immediate effect, pending investigations…” reads part of the memo sent to the DVC.
The investigations process was slow, and the two moved to Nakuru High court to seek speedy investigations. The high court ruled in their favor and instructed the VC to form a disciplinary team and notify the two of the outcome of the investigations and to impose any disciplinary action, if at all.
The VC obliged and formed a disciplinary council whose outcome was that the two should be fired.
The two officers petitioned the labor and employment court to challenge the decision of the disciplinary council.
The two accused the VC of having ill motives towards them. In publicly available court documents, the two men said the VC engaged in an unprofessional way of settling scores- using her office to intimidate junior officers aligned to the DVC and finance officer.
For instance, the VC gave her DVC’s personal assistant a compulsory 50 days leave, transferring the DVC’s secretary to another department and giving the DVC’s driver a warning for performing his duties as the driver of the DVC.
The employment & labor relations court of Kenya sitting in Kericho heard that the VC’s actions were not only malicious but also an indicator that the Vice-Chancellor was using her office to settle personal scores with her deputy at the expense of the university’s interest and that of the students and the public.
In another act that demonstrated the war between the VC and her deputy, Vice-Chancellor Teresa Akenga told the National Assembly’s Education Committee that the DVC was part of staff that irregularly raised the marks to post good results for some students in order to graduate in 2015.
This ultimately led to the cancellation of results of some 163 students who hoped to graduate that year.
The main argument for the two before the Kericho court was that the VC did not properly form a disciplinary council; hence their ruling that the two should be fired was null and void.
Judge D.K.Njagi Marete of the Kericho based court ruled in favor of the VC, arguing that the petition flouts the principle of res judicata and is therefore inopportune.
In other words, the court agreed with the VC that she is the appointing authority and that she has the duty to enact disciplinary proceedings against her subordinates.
The court further ordered that each party bears their own costs of the petition.
Not satisfied with the lower court’s rulling, the two through their lawyer Kipkoech Ngetich, moved to the Court of Appeal in Nakuru to seek conservatory orders.
The promulgation of the Constitution in 2010 handed citizens new freedom to check the implementation of orders by branches of governments, including such orders by the Kericho court that support their firing from their roles.
For the two, they wanted the order of the Kericho court suspended since they had attended an illegitimate disciplinary hearing at first, as their legal advisers had raised several objections not answered by the court.
In other words, they questioned why the Kericho court failed to consider the validity of the disciplinary Council and the whole disciplinary process.
Judge Radido Stephen of the High Court faulted the employment court in Kericho for intervening in the course of the disciplinary process, by agreeing with the VC that the two should be fired.
The judge argued that the employment court did not have jurisdiction to determine the outcome of a university’s diciplinary council and that the two petitoners only sought the intervention of the court to question the makeup of the disciplinary council.
He then issued conservatory orders restraining the University and the Vice-Chancellor from deliberating or a making a decision from the disciplinary proceedings conducted on January 13, 2016.
He directed that the two be served with investigations results by a legally-constituted University Council before any further disciplinary action could be taken against them.
He also allowed the two to resume their duties as university employees pending the determination of a new hearing.
After getting back to their offices, the two began the process of appealing against the earlier ruling by the employment court sitting in Kericho.
The High Court sitting in Nakuru heard that UOE management utterly disregarded the conservatory orders by commencing disciplinary proceedings against the two.
They further challenged the terminations contending that the said terminations were unlawful, irregular and illegal, first on account of breach of constitutional provision and lack of mandate of an illegally formed disciplinary council to execute their said functions.
The two also asked the appellant judges to find that the reasons on the basis of which the Judge of the employment court sitting in Kericho arrived at his conclusion that their petition flouted the principle of res judicata and therefore inopportune.
The appeals court ruled that the judge of the Kericho based employment court did not rely on facts and that he failed to consider the tenets of Universities Act 2012 regarding the composition of a disciplinary council. Some members of the council were in office illegally.
Appeal judges Roselyne Nambuye, Fatuma Sichale and Sankale ole Kantai in 2018 referred the matter back to Labour court in Kericho for assessment and remedies by a different judge.
Judge M. Mbaru agreed with the two that they were illegalities in the process that resulted in their terminations from their occupational roles.
She also said the university’s actions negated the fundamental bill of rights granted to every Kenyan by the constitution.
This is because when the termination of the employment occurred, one of the petitioners, Prof Kiprop has taken a loan of Ksh.1, 092,708.00 with Kenya Commercial bank, and the bank had threatened to call up the entire debt of Ksh.19, 842,507.00.
If such arrears were not cleared by 30th August 2019, Prof Kiprop would have been left destitute, infringing on his basic human rights contained in the constitution.
She ruled that Prof. Ezekiel Kiprop be paid ksh.24,174,994.660 following his unlawful termination of employment as the Deputy Vice-Chancellor (Administration and Finance) of UOE and which sum included back salaries, notice pay, leave pay, gratuity and passage and baggage.
What’s more, the Kericho court reinstated Mr Sitienei back to his position as a finance officer and awarded him salary arrears owed to him from June 2016 or an alternative Sh14.7 million.
This time around, the university was not satisfied with the court’s verdict and issued a notice of motion at the Supreme Court.
But even though UOE made it sound as a right to seek the intervention of the country’s top justices, not every case is entitled for a hearing at the Supreme Court.
The decision to hear a case at the Supreme Court is entirely at the discretion of the justices, and they chose very carefully.
For this reason, apex court ruled that the application by UOE had no merit and dismissed it on April 30.
Still, the university was not satisfied with the ruling and filed another application at the Supreme Court seeking to file another appeal.
In the meantime, the two started implementing the Kericho-based ruling and sought their compensation.
The Kericho based court had issued a garnishee order which started the process of debiting UOE’s accounts with monies owed to the two.
As if to indicate they were tired with the cat-and-mouse legal game, UOE withdrew its second petition with the Supreme Court.
In its application dated July 3, the university, through its lawyers, claims the appeal will be an exercise in futility since the officers have already received their money.
However, the two were not finished with their part. Through a sworn affidavit to the Supreme Court, the two claim the university’s appeal was malicious and meant to frustrate them.
They want the Supreme Court to charge UOE cost of the application for the two petitions.
Cumulatively, all the expenses incurred by UOE in relation to the court are approaching Sh58,313,158 in the litigation of the cases involving the two officers.
Mr. Sitienei accused Prof Akenga of resentfulness against people she despises and that she was using the process to siphon money from the university’s coffers.
“Why would the applicants use all that money as legal fees to defend against such an award yet that money is nearly double of what they were to pay us?” Mr Sitienei told the Daily Nation.