https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1903

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAIROBI** **CAUSE NO. E978 OF 2025** **ERICK OMODHO OKELLO…………………CLAIMANT/APPLICANT** **VERSUS** **JOMO KENYATTA UNIVERSITY** **OF AGRICULTURE & TECHNOLOGY………………..…RESPONDENT** **RULING** 1. Before Court is the Claimant/Applicant’s motion application dated 7th October, 2025, brought pursuant to Sections 1A, 1B, and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, 2010. The Applicant seeks orders **THAT**: - 2. Spent 3. An Order of Temporary Injunction be issued against the Respondent whether by themselves, servants, Agents, Employees/Workers, or any other persons acting on their behalf, from terminating the Claimant's employment during the Claimant's study leave at Tomas Bata University (TBU) in the Czech Republic, pending the hearing and determination of this application. 4. An Order of Temporary Injunction be issued against the Respondent, whether by themselves, servants, Agents, Employees/Workers, or any other persons acting on their behalf, from terminating the Claimant's employment during the Claimant's study leave at Tomas Bata University (TBU) in Czech Republic pending the hearing and determination of this suit. 5. Costs of this Application be provided for. 6. The application is supported by grounds on the face thereof and the affidavit *of Erick Omodho Okello*, sworn on 7th October 2025, and his further affidavit sworn on 27th March, 2026. 7. The Claimant states that after his PhD studies at JKUAT stalled due to uncertainty, he applied for several PhD scholarships and subsequently received an invitation from Tomas Bata University (TBU) in the Czech Republic to join a research laboratory, which he accepted after consulting Prof. Arnold Onyango, who had no objection, given that the local PhD program had effectively stalled. 8. It is his case that when he informed Professor Daniel Ndaka Sila of his plans, he threatened that any application for study leave would be denied and warned that pursuing a PhD elsewhere would jeopardize the Claimant's employment. 9. The Claimant further avers that on 17th September 2024, he formally applied for the PhD study leave to pursue the opportunity at TBU, which he avers was approved, with the leave taking effect from 1st March 2025. He further avers that, following the leave approval, he made the necessary travel arrangements and notified Tomas Bata University of his acceptance by December 2024. 10. The Claimant states that his approved study leave was subsequently canceled on 15th January 2025 on the grounds that he was already on a VLIR-UOS scholarship at JKUAT. He contends that the cancellation was unlawful and procedurally unfair, and that the Respondent further violated his rights by initiating disciplinary proceedings and seeking to terminate his employment for failing to report to duty while he was on approved leave. 11. It is his case that after meeting the Deputy Vice-Chancellors (Academic Affairs and Administration & Finance), he was advised to appeal against the cancellation of his study leave. 12. The Claimant states that, following the advice of the Deputy Vice-Chancellor (Administration and Finance), he lodged an appeal against the cancellation of his study leave on 20th January 2025 and made several follow up visits and written appeals between January and February 2025. 13. He states that despite these efforts, the Respondent failed to respond to any of his appeals. He contends further that with his PhD scholarship at Tomas Bata University nearing expiry, he submitted further urgent appeals on 19th and 24th February 2025 seeking permission to proceed on study leave, but received no response. 14. The Claimant states that the Respondent's inaction violated his right to expeditious, lawful, and procedurally fair administrative action under the Fair Administrative Action Act. 15. The Claimant states that communications from KU Leuven and VLIR-UOS confirmed that he was not on an active VLIR-UOS PhD scholarship and advised him to pursue the matter through the Respondent's internal procedures. He states that he thereafter proceeded to Tomas Bata University, enrolled for his PhD on 1st March 2025, and informed the Vice-Chancellor of the commencement of his studies while also seeking responses to his earlier correspondence, without success. 16. The applicant further states that he requested documents relating to the alleged VLIR-UOS scholarship, but the Respondent did not respond. The Claimant also noted that the Respondent continued to pay his full salary during his study leave and raised the issue in a letter dated 7th August 2025. 17. The Claimant states that on 27th August 2025, he received a show cause letter accusing him of neglect and abandonment of duty for failing to report to work after his study leave had been rescinded. He avers that he responded to the allegations on 5th September 2025. 18. It is his case that he was subsequently invited to a disciplinary hearing scheduled for 6th October 2025, which he requested a postponement due to illness, but the Respondent proceeded with the hearing in his absence. The Claimant contends that the disciplinary process was malicious, motivated by earlier threats from Professor Daniel Ndaka Sila, and amounted to discrimination and a hostile work environment. 19. He further avers that the Respondent's actions caused him emotional, mental, and physical distress and urges the Court to grant the application to prevent a miscarriage of justice. 20. In his further affidavit, the Claimant avers that he was never served with the University Council Staff Disciplinary Committee's decision dated 7th October 2025 and only became aware of it upon receiving the Respondent's Replying Affidavit. 21. He states that he had requested all official communications be sent to his work email while studying at Tomas Bata University, a communication channel previously used by the Respondent, but his email account was disabled shortly after the termination without notification of the disciplinary decision. 1. The Claimant contends that the Respondent is relying on the undisclosed decision to mislead the Court and circumvent the injunctive orders already issued, and urges the Court to reject the Respondent's conduct. 2. The Respondent opposed the application vide a Replying affidavit sworn by Beatrice Kimundu on 26th February, 2026. 3. The Respondent states that the Claimant was admitted to a PhD programme in Food Science and Technology at the Respondent's Main Campus on 23rd November 2020, with the admission being valid for two years. The Respondent further avers that its Training Committee approved the Claimant's request for a fee waiver and sponsorship to pursue the PhD, covering registration, tuition, and examination fees while requiring the Claimant to meet other prescribed charges. 4. It avers that the sponsorship was granted on condition that, upon completion of his studies, the Claimant would serve the Respondent for at least three years, failing which he would be required to refund the monies expended on his training. 5. The Respondent further states that the Claimant accepted the terms of the sponsorship on 13th April 2021, and was thereafter granted retrospective full study leave from 1st February to 4th August 2022 to pursue his PhD at the Respondent in collaboration with KU Leuven, Belgium. 6. The study Respondent states that the leave entitled the Claimant to 80% of his basic salary and further required him to submit annual academic progress reports, apply for renewal at least two months before expiry of the leave, and serve the Respondent for three years upon completion of his studies, failing which he would be required to refund the training costs incurred by the Respondent. 7. The Respondent states that the Claimant was promoted to the position of Tutorial Fellow on a two-year renewable contract, subject to the requirement that he pursue his assigned duties and comply with the Respondent's Human Resource Policies, and which contract was again renewed until 5th November 2025. 8. It contends that, in June 2024, the Claimant informed the Respondent that he was abandoning the PhD programme being undertaken at JKUAT in collaboration with KU Leuven, contrary to the terms of his study leave and employment contract. The Respondent further asserts that the Claimant subsequently applied for and was admitted to a different PhD programme at Tomas Bata University in the Czech Republic, in breach of the conditions governing his sponsored studies and employment. 9. The Respondent contends that the Claimant has produced no evidence to support his allegations that he consulted Professor Arnold Onyango, that the latter approved his decision to pursue a PhD at Tomas Bata University, or that Professor Daniel Ndaka Sila threatened him. The Respondent acknowledges that it initially approved the Claimant's application for study leave to pursue a PhD at Tomas Bata University and communicated the approval in October 2024, which the Claimant accepted. 10. The Respondent maintains that the approval was granted under the mistaken belief that the Claimant had completed his earlier PhD programme at JKUAT in collaboration with KU Leuven. It states that this error was subsequently brought to its attention by the Principal of the College of Agriculture and Natural Resources, who advised that the Claimant remained an active VLIR-UOS-funded PhD student at JKUAT, that his research was progressing satisfactorily with only one publication remaining before graduation, and that the PhD programme at Tomas Bata University substantially overlapped with his existing studies. 11. The Respondent states that, after discovering the Claimant was still undertaking a VLIR-UOS-sponsored PhD at JKUAT, the Training Committee approved the cancellation of his study leave to Tomas Bata University, and the decision was communicated to him on 11th January 2025, approximately two months before the leave was due to commence. The Respondent contends that the cancellation was a lawful exercise of its managerial prerogative and in accordance with its policies. 12. The Respondent acknowledges that the Claimant appealed the cancellation to the Deputy Vice-Chancellors and the Vice-Chancellor but denies advising him to lodge the appeals. It further asserts that the Claimant has not produced evidence that he had made travel arrangements before the cancellation. 13. The Respondent further avers that, despite being aware that his study leave had been rescinded, the Claimant proceeded to Tomas Bata University, informed the Respondent that he had commenced his studies, and requested that future communications be sent to his official work email. It maintains that the Claimant acted without lawful authority and in breach of the Respondent's policies by relying on an approval that had already been withdrawn. 14. The Respondent states that the Claimant's appeal against the cancellation of his study leave was rejected because he remained enrolled in a JKUAT PhD programme under a fee waiver and was also attached to a European Union-supported programme involving research at KU Leuven. The Respondent maintains that the Claimant was required to complete that programme before enrolling in another PhD in accordance with its Staff Training Policy. 15. The Respondent further notes that, despite informing the Vice-Chancellor that he had commenced studies at Tomas Bata University, the Claimant also sought renewal of his employment contract and later pointed out that he was still receiving his full salary contrary to the terms of his study leave. The Respondent thereafter issued a show cause letter on 25th August 2025, on the basis that the Claimant had failed to report to work after his study leave was rescinded, and requiring him to explain why disciplinary action should not be taken against him. 16. The Respondent states that the Claimant acknowledged receipt of the show cause letter and responded to it before being invited to a disciplinary hearing. It avers further that although the Claimant declined to attend the hearing on grounds of ill health and mental instability, the Respondent contends that he provided no medical evidence to support his request for adjournment. 1. The Respondent states that the disciplinary hearing proceeded with the Claimant being represented by three officials from the Universities Academic Staff Union (UASU), who were afforded an opportunity to make representations on his behalf. 2. The Respondent further avers that, after considering the evidence, the Council Disciplinary Committee found that the Claimant had knowingly proceeded to Tomas Bata University despite the cancellation of his study leave, remained absent from duty without authority from 1st March 2025, and had disregarded lawful management instructions. Consequently, the Committee resolved to terminate his employment with effect from 5th October 2025 and recover salary and tuition costs paid during the unauthorized absence. 3. The Respondent maintains that the termination was based on a valid and lawful reason and that due process was followed. 4. It denies the allegations of malice, discrimination, and unfair treatment, and argues that the application is overtaken by events because the Claimant's employment had already been terminated and, in any event, his fixed-term contract expired on 5th November 2025. 5. Accordingly, the Respondent contends that the Claimant has not established a prima facie case, irreparable harm, or entitlement to injunctive or reinstatement orders, and prays for the dismissal of the application with costs. 6. Parties canvassed the application through written submissions, which were received and have been duly considered. **Analysis and Determination** 1. The issue for determination is whether the Claimant has satisfied the threshold for the grant of a temporary injunction. 1. The principles governing the grant of interlocutory injunctions are well settled. In ***Giella v Cassman Brown & Co. Ltd [1973]EA 358***, the Court held that an applicant must establish a prima facie case with a probability of success, that he stands to suffer irreparable injury which cannot adequately be compensated by an award of damages, and where the Court is in doubt, the application should be determined on a balance of convenience. 2. These principles were further elaborated in ***Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KECA 175 (KLR)***, where the Court defined a prima facie case as one which, on the material presented, demonstrates an apparent infringement of a right calling for rebuttal by the opposite party. 3. It is common ground that the Claimant was initially granted study leave to pursue a PhD at Tomas Bata University, and before the study leave commenced, the Respondent rescinded that approval by its letter dated 11th January 2025. It is also not disputed that the Claimant appealed against the cancellation, but notwithstanding the cancellation and without receiving approval of his appeal, the Claimant proceeded to Tomas Bata University and commenced his studies on 1st March 2025. 4. The principal dispute herein is therefore not whether the study leave was canceled, but whether the Respondent lawfully rescinded its earlier approval and whether the Claimant was justified in proceeding to the Czech Republic despite the withdrawal of the study leave. 5. The Claimant argues that the cancellation violated Article 47 of the Constitution and the provisions of the Fair Administrative Action Act, arguing that it was undertaken without procedural fairness and because his subsequent appeals were never determined. He further relies on correspondence from KU Leuven and VLIR-UOS, suggesting that he was no longer on an active scholarship. 6. Conversely, the Respondent has exhibited documentation showing that the approval of the second study leave was withdrawn after it emerged that the Claimant remained a beneficiary of the Respondent's sponsored PhD programme. The Respondent maintains that the initial approval was granted under a mistaken assumption and that its Training Committee subsequently resolved to rescind it in accordance with its Staff Training Policy. 7. In my view, whether the Respondent was entitled to rescind the study leave, whether the cancellation complied with Article 47 of the Constitution and the Fair Administrative Action Act, whether the Claimant remained an active beneficiary of the VLIR-UOS programme, and whether the Respondent acted fairly in the ensuing disciplinary process are substantive issues requiring viva voce evidence and full interrogation at trial. At this interlocutory stage, this court is unable to make definitive findings on these contested questions. 8. It is also apparent that the injunction sought was to restrain the Respondent from terminating the Claimant's employment, which, by the Replying Affidavit filed, it is evident that disciplinary proceedings had already been concluded and the Claimant's employment terminated with effect from 5th October 2025. 9. It then follows that the injunctive relief sought has therefore been overtaken by events. 10. Courts have consistently held that an injunction is a preventive remedy intended to restrain an anticipated act and cannot ordinarily issue to restrain an act that has already occurred. ***(See Kenya Breweries Ltd & Another v Washington O. Okeyo, 2002] eKLR.)*** 11. Further, in employment disputes such as the one before me, reinstatement is a substantive remedy governed by Section 49 of the Employment Act and Section 12(3)(vii) of the Employment and Labour Relations Court Act. Such relief is ordinarily considered after the Court has heard evidence and determined whether the termination was unfair. 12. The Court of Appeal in Kenya ***Airways Limited v Aviation & Allied Workers Union Kenya & 3 Others*** ***[2014] eKLR,*** emphasized that reinstatement is an exceptional remedy to be granted only after careful consideration of the statutory factors and not on an interlocutory basis. 13. Further, any loss suffered by the Claimant arising from the termination is no doubt capable of being remedied through the statutory remedies available under Sections 49 and 50 of the Employment Act, should he ultimately succeed at trial. 14. The Applicant has therefore not demonstrated irreparable injury incapable of compensation by damages. 15. In the final analysis, I find and hold that the Claimant has not satisfied the requirements for the grant of an interlocutory injunction, and the Notice of Motion dated 7th October 2025 is hereby dismissed, with costs in the cause. 16. It is so ordered. **SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 3RD DAY OF JULY, 2026.** **C. N. BAARI** **JUDGE** **Appearance:** Ms. Atieno h/b for Mr. Koceyo for the Claimant/Applicant Ms. Anyango h/b for Mr. J. B. Macharia for the Respondent Ms. Esther S- C/A