Omwenga v Jomo Kenyatta University of Agricutlrure and Technology (Judicial Review Application E050 of 2026) [2026] KEELRC 2398 (KLR) (14 August 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **JUDICIAL REVIEW APPLICATION NO. E050 OF 2026** **DR JANE QUEEN OMWENGA APPLICANT** *VERSUS* **JOMO KENYATTA UNIVERSITY OF AGRICULTURE** **AND TECHNOLOGY RESPONDENT** **JUDGMENT** The applicant, Dr Jane Queen Omwenga, filed the application dated 14 May 2026, seeking orders prohibiting the respondent and staying and stopping its decision and the disciplinary hearing against the applicant, scheduled for 18 May 2026. The applicant thus sought an order of certiorari, prohibition, and mandamus to quash the respondent's decision to commence a disciplinary hearing against her. The applicant has been employed by the respondent on permanent and pensionable terms since 2014. The application is made on the grounds that the applicant is a lecturer. The respondent, as a public university, is bound under the Constitution to ensure fair administrative action under Article 47, the Employment Act and the Labour Relations Act. The applicant’s case is that on 11 May 2026, the respondent issued her with notice requiring her to attend a disciplinary hearing on 18 May 2026 at JKUAT CBD Towers, Nairobi. The time allocated was inadequate, given the gravity of the charges the applicant faced. Her case was that she had not been afforded reasonable time and facilities to prepare her response. She was not allowed to attend with a person of her choice and was not provided with all the documents, minutes, correspondence, complaints, and reports necessary for the hearing and response. The applicant urges the court that the respondent has acted outside the principles of natural justice and that the disciplinary hearing that has commenced should be stayed, quashed, and the application allowed with costs. The applicant filed her supporting affidavit and averred that the respondent has violated her rights to employment, fair hearing, and fair administrative action. The summons issued on 11 May 2026 to attend a disciplinary hearing on 18 May 2026 was inadequate, and the necessary evidence was not supplied to enable her to defend herself. If the disciplinary hearing is allowed to proceed, great prejudice and damage will occur. In response, the respondent filed the Replying Affidavit of Symon Peter Otieno, the Director, Human Resources and avers that the applicant was issued with a notice to show cause by the respondent on 22 September 2025, seeking that she explain her absence from duty from 1 January 2024 to the date of the show cause notice, considering that she had no permission or authorisation from the respondent. The response to the show cause notice was to be received within 14 days, but the applicant responded after 52 days through a letter dated 14 November 2025. In the response, the applicant failed to provide a detailed explanation as to her absence from work for the period addressed in the notice to show cause. By letter dated 6 May 2026, the respondent invited the applicant to the University Staff Disciplinary Committee of Council, scheduled for 18 May 2026, to respond to charges of neglect and abscondment of duty. The respondent had a valid, reasonable, and lawful reason to subject the applicant to the disciplinary process for neglect and abscondment of duty. Due process was followed up to the point where the applicant was invited to attend the disciplinary hearing, until the court's intervention. Otieno avers in the Replying Affidavit that, in convening the disciplinary hearing, the respondent was only exercising its mandate to regulate, supervise, and enforce discipline among its staff, and to provide the applicant with an opportunity to be heard, as required under Articles 47 and 50 of the Constitution. The claim that the applicant was not afforded time to prepare her case is incorrect. The notice issued was 11 days, and the chance to attend with another employee of choice was allowed. There was no formal request for evidence, documents or any other relevant materials as alleged. There exists a collective agreement (CBA) between the respondent and the University Academic Students Union that allows staff to be accompanied by two union representatives of their choice under section 4(4) of the Fair Administrative Action Act. By moving the court, the applicant is attempting to disrupt the disciplinary process, which is in bad faith. The respondent ought to be allowed to proceed with the disciplinary hearing against the applicant and the orders sought should be dismissed with costs. In addressing the application, the applicant submitted that she applied for leave of absence without pay on 26 December 2022, April 2023 and 20 December 2023. The respondent received the requests and were not rejected, nor was the applicant directed to resume duty. There was no written communication given within the timelines represented in the Service Delivery Charter. Instead, the respondent asked for additional documentation in my 2024 and thereafter ceased salary payments from June 2024. The applicant submitted that the respondent's conduct had two meanings: either the leave had been approved without pay, or it had been approved pending formalisation. The respondent cannot thus claim abscondment of duty as alleged. The notice issued on 11 May 2026 for attendance on 18 May 2026 without furnishing the necessary documentation did not accord the applicant sufficient time to prepare her representations. This is contrary to articles 41, 47, 50 and 236 of the Constitution. The court may intervene when the employer fails to adhere to due process under the Constitution and the law. In **Rebecca Ann Maina & 2 others v Jomo Kenyatta University of Agriculture and Technology [2014] eKLR**, the court held that the employer’s disciplinary power is not absolute and the court can intervene to ensure there is no violation of the law or the Constitution, in **Waruhiu v Directline Assurance Company Limited, Cause No. In E043 of 2023**, the court held that although the employer has managerial prerogative, disciplinary power must be exercised in accordance with the law, internal policies, and the contract of service. In this case, the employer has the right to discipline, but the process should adhere to internal policies. Article 47 of the Constitution requires that a fair administrative process be undertaken before any adverse decision is made. In **Shollei v Judicial Service Commission & Another Petition 34 of 2014**, the court held that fair administrative action must be reasonable, lawful and procedurally fair. The right to fair administrative action includes the right to rules of natural justice. The disciplinary process undertaken by the respondent is illegal, irrational and procedurally improper. The respondent received the applicant’s application for leave of absence without pay, but failed to render a decision. The respondent’s Service Delivery Charter required that correspondence be completed within 5 days. The omission to address this administrative matter was prejudicial to the applicant. Article 236(b) of the Constitution protects public officers from being dismissed, removed from office, demoted in rank, or subjected to disciplinary action without due process. Section 41 of the Employment Act requires the employer to issue notice to the employee and allow attendance with another employee of the employee's choice. There must be a valid reason leading to the disciplinary process, which is lacking in this case. In **Central Furniture Shop Limited v Mohamed Appeal No. E097 of 2024**, the court held that the employer alleging abandonment of employment bars the legal burden of addressing such lapse. In this case, the respondent did not discharge this burden. The applicant had a legitimate expectation that she would be accorded due process before the disciplinary process commenced, and the orders sought should be issued with costs. The respondent submitted that the applicant has not met the threshold for the grant of the orders sought. As the employer, the respondent is a public institution legally mandated under the Universities Act to discipline its employees, including the applicant. There are the Employment Act, the internal regulations, and the Public Service Disciplinary Manual, 2022. Section 36 (1) (d) of the Universities Act provides the respondent’s council the right to discipline the staff members. In **Maureen K. Imbaka & another v Teachers Service Commission & another, Cause No. E381 of 2017,** the court held that the internal disciplinary process undertaken by the employer pursuant to the Constitution and its mandate was proper. The employee will have the opportunity to move the court at the end of the disciplinary process after appearance before the Commission. The applicant was issued with a notice to show cause letter by the respondent on 22 September 2025, seeking an explanation for her absence from duty from 1 January 2024 to date. The applicant was noted to have been absent from duty without authorisation. She did not respond within the 14 days allowed but 52 days. The applicant was invited before the disciplinary committee with 7 days' notice. She opted to file suit. The respondent thus adhered to due process under Articles 47, 41, 50 and 236 of the Constitution. In **Anthony Mkala Chitavi v Malindi Water & Sewerage Company Limited [2013] eKLR,** the court held that the employer should inform the employee of the charges she faces before terminating her employment. It follows naturally that if there is a right to information, the employee should attend the disciplinary hearing once invited by the employer. The respondent submitted that the due process in convening the disciplinary process was adhered to. The applicant was issued with a notice to show cause detailing her case, and she replied. The invitation to attend a disciplinary hearing was the next legal issue. In **Waruhiu v Directline Insurance Company Limited [2025] KEELRC**, the court held that the principle of managerial prerogative refers to the employer's inherent right and authority to direct and control its workforce and business operations. The employer is thus entitled to make various decisions at the workplace, including disciplinary control over the employees. In this case, the applicant has been directed in accordance with the policy, the law, and the constitution; the orders sought should be dismissed with costs. **Determination** The core of the matter herein is the applicant's seeking orders prohibiting the respondent from proceeding with the disciplinary hearing scheduled for 18 May 2026, and further that the notice inviting her to the disciplinary hearing be quashed. The applicant also seeks to have the respondent prohibited from proceeding with the disciplinary hearing. The reasons are that the applicant applied for a leave of absence without pay, there was no response, and the respondent has now invited her to attend the disciplinary hearing for alleged abandonment of duty, contrary to Article 47 of the Constitution and section 4 of the Fair Administrative Action Act. The applicant asserts that, under the respondent’s Service Delivery Charter, a reply was required within 5 days upon her application for leave of absence, but it was not provided. Hence the respondent cannot rely on its administrative delay, silence and omission as a basis for disciplinary action against the applicant. In response, the respondent’s case is that the applicant was issued with a notice to show cause on 22 September 2025 to explain her absence from duty from 1 January 2024 to date. She was required to reply within 14 days, but she did so after 52 days. In the reply, she failed to give satisfactory explanations. She was then invited to attend a disciplinary hearing on 18 May 2026 but opted to file these proceedings. Indeed, in **Rebecca Ann Maina & 2 Others v Jomo Kenyatta University of Agriculture & Technology 2014 e KLR,** the court held that, for an employee to respond to the allegations made against her, the charges must be clear and the employee must be given sufficient time to prepare his defence. The employee is also entitled to documents in the employer's possession that would assist in preparing the defence, and to call witnesses to buttress it. This position is reiterated in A**nthony Mkala Chitavi v Malindi Water & Sewerage Co Ltd 2013 eKLR,** that the employer should inform the employee of the charges the employer is contemplating before dismissing the employee, which gives the employee the right to be informed and the proper opportunity to be present and be heard/make representations. However, once the employee is issued a notice to show cause and files a response, the next logical step is an invitation to a disciplinary hearing if the response is unsatisfactory. In this case, the applicant asserts that she was not given sufficient time to attend the disciplinary hearing. The notice dated 11 May 2026 directing her to attend the hearing on 18 May 2026 was insufficient. However, the applicant did not reply to the respondent's request for more time to attend the disciplinary hearing. There is no written request for such extension of time. The issue at hand was absence from duty from 1 January 2024. Notice to show cause was issued on 22 September 2025. The respondent, who was required to do so within 14 days, did not do so within 52 days. The applicant does not state why there was no response within the allocated timelines. Additionally, the applicant asserts that she was not allowed to attend the disciplinary hearing with her representative. Under section 41 of the Employment Act, the employee has the right to attend a disciplinary hearing with another employee of their choice or a trade union representative on the shop floor. The respondent submitted that there is a recognised trade union and that two union officials were in attendance at the disciplinary hearing. These responses are not challenged in any material way. The applicant did not write to the respondent seeking to have her representative of choice attend with her during the disciplinary hearing. The applicant asserts that she requested a leave of absence without pay, but received no response. The Service Delivery Charter requires the respondent to reply within 5 days. However, absence from work without the employer's permission or authorisation constitutes a fundamental breach of the employment contract, contrary to section 44(3) and (4) of the Employment Act. The applicant cannot justify an absence from work without authorisation under the Service Delivery Charter, outside the written law. Such justification is without justification and cannot apply in fostering industrial peace. Where the law requires adherence to due process, a Service Delivery Charter cannot be invoked to negate the law. In **Stephen Musyoka Katiku v Orbit Enterprises Limited [2016] KEELRC 2 (KLR),** the court emphasised that absence from duty without authorisation by the employer warrants summary dismissal. In this case, the respondent issued notice to the applicant setting out the charges she faced for neglect and abandonment of duty. The particulars are set out in detail. For all the leave application forms submitted, there is no written approval allowing the applicant to be absent from duty. Whether the absence was paid or unpaid, as the respondent's employee, the applicant was bound under her employment contract and internal policies to ensure any absence from duty was authorised by written approval. The requirement to attend a disciplinary hearing following the unsatisfactory response to the notice to show cause on 18 September 2024 was a necessary step to allow the applicant to attend and explain herself. The least the applicant should have done was to take advantage of the opportunity to attend before the disciplinary committee to advance her case. Disrupting the process over allegations that she was not allowed sufficient time, yet has remained outside work from 1 January 2024, is not justified. Since the notice to show cause was issued on 22 September 2025, the applicant should attend and address her case within the protections of section 41 of the Employment Act. In this regard, the applicant moved the court by way of judicial review proceedings. Judicial review is not concerned with the merits of the decision being challenged but with the decision-making process. The applicant has not satisfied the threshold to warrant the judicial review orders sought. This is aptly addressed in **Judicial Service Commission v Shollei & another [2014] KECA 334 (KLR)**, where the court emphasised; *… courts ought to be slow to make determinations that are on the face of them unrealistic and bordering on the cynical. Courts do intervene in employer-employee disputes, but even as they do so, they must appreciate that the workplace must be allowed and enabled to operate in a manner that is productive and harmonious. Courts cannot micro-manage the human resource function of other institutions, be they in the public or in the private sector. It is thus clear to me that a judge oversteps his mandate when he fails to give due and grave consideration to the intractable difficulty an employer faces when faced with insubordination, which is really a form of headstrong defiance and open rebellion to lawful authority. In such instances, the act of firing the employee properly taken should not invite the courts’ quashing power by way of certiorari as happened herein* Thus, the alleged violations of articles 10, 41, 47, 73, and 236 of the Constitution cannot be discerned on the given facts. The applicant cannot seek protection therefrom, whereas there is no adherence to directions issued by the employer, the respondent. The application before the court is thus without merit. The applicant has since enjoyed interim orders stopping the disciplinary hearing. The respondent shall issue fresh notice to the applicant on when and where to attend the disciplinary hearing. **Accordingly, the application dated 14 May 2026 is dismissed. Costs to the respondent.** **Delivered in open court this 14th day of August 2026** **M. MBARŨ** **JUDGE** **In the presence of:** **Court Assistant: Kemboi** **……………………………………………… and …………………………………..………**