Court Rejects JKUAT Lecturer’s Bid to Stop Disciplinary Action Over 2-Year Absence

A JKUAT lecturer has lost a court battle to stop disciplinary proceedings over her prolonged absence from work.

Justice Monica Mbarũ ruled that Dr Jane Queen Omwenga had not shown grounds for stopping Jomo Kenyatta University proceedings.

The judge dismissed her judicial review application and ordered her to pay JKUAT’s legal costs.

However, the university must issue her a fresh notice before restarting the disciplinary hearing.

The ruling leaves unresolved the university’s allegations that Omwenga neglected and abandoned her duties.

It also draws an important line between applying for leave and actually receiving permission.

Omwenga, a senior lecturer at JKUAT, has been associated with the university’s entrepreneurship programmes and academic supervision.

The dispute traces back to her absence from university duties beginning January 1, 2024.

JKUAT says she stayed away without permission or formal authorisation.

Omwenga disputes that account and says her absence followed several unpaid-leave applications.

The Leave Dispute

According to court records, Omwenga applied for unpaid leave on three separate occasions.

She submitted applications on December 26, 2022, April 2023, and December 20, 2023.

She told the court that JKUAT received those applications but never formally rejected them.

The university instead requested additional documentation before eventually stopping her salary in June 2024.

Omwenga argued that JKUAT’s silence created a serious administrative problem.

She suggested her leave was either approved without pay or awaiting formal completion.

The university took a sharply different position.

It maintained that no written approval ever authorised her prolonged absence.

That distinction ultimately became central to Justice Mbarũ’s decision.

The judge accepted that JKUAT’s Service Delivery Charter required timely responses.

The charter required correspondence to receive responses within five days.

But the judge rejected the suggestion that administrative silence created permission to remain away.

The law, the court held, still required proper authorisation for absence.

The judgement cited section 44 of the Employment Act concerning unauthorised absence.

The judge described unauthorised absence as a fundamental breach of the employment contract.

In simple terms, applying for leave was not enough.

Omwenga needed written approval before treating herself as authorised to stay away.

Disciplinary Action

The university formally confronted the absence in September 2025.

On September 22, JKUAT issued Omwenga with a notice to show cause.

The notice demanded an explanation for her absence from January 1, 2024, onwards.

She had 14 days to respond to the allegations.

But JKUAT said her response arrived after 52 days.

The university further argued that her explanation failed to account adequately for the prolonged absence.

It therefore moved towards a formal disciplinary hearing.

On May 6, 2026, JKUAT invited Omwenga before its Staff Disciplinary Committee.

The hearing was scheduled for May 18 at JKUAT CBD Towers in Nairobi.

Omwenga responded by moving to the Employment and Labour Relations Court.

She sought orders stopping the disciplinary hearing and quashing the university’s decision.

Her application relied heavily on constitutional guarantees of fair administrative action.

She argued that the notice gave her too little time to prepare her defence.

The notice dated May 11 gave her only seven days before the scheduled hearing.

She also complained that JKUAT had withheld important documents.

Those documents allegedly included minutes, correspondence, complaints, and investigative reports.

She further argued that she had not been allowed proper representation during the hearing.

Court’s Finding

Justice Mbarũ agreed with Omwenga on one important procedural point.

The judge found that the notice period for the disciplinary hearing was insufficient.

But that finding did not ultimately justify stopping the disciplinary process.

The judge noted that Omwenga never formally requested additional time from JKUAT.

There was no written application seeking an extension before she approached the court.

That omission weakened her argument that she had been denied a fair opportunity.

The representation argument suffered a similar setback.

Section 41 of the Employment Act protects an employee’s right to representation during discipline.

An employee may attend with another employee or appropriate union representation.

JKUAT said two union officials were available during the disciplinary process.

The court found that Omwenga had not materially challenged that explanation.

She had also not formally requested her preferred representative before filing suit.

The judge therefore found insufficient evidence that JKUAT had denied her representation.

More importantly, the court rejected her argument concerning the unpaid leave.

There was no written approval authorising her to remain away from work.

The court held that employees remain responsible for obtaining proper authorisation.

An employer’s administrative silence cannot automatically replace that authorisation.

The judge said a Service Delivery Charter could not override statutory employment obligations.

That finding could prove significant for future workplace disputes involving unanswered leave applications.

A Wider Warning

The judgement also addressed when courts should interfere with disciplinary proceedings.

Judicial review, Justice Mbarũ stressed, focuses on the decision-making process.

It does not ordinarily determine whether the employee actually committed the alleged misconduct.

That distinction meant the court was not deciding Omwenga’s ultimate guilt or innocence.

Instead, it asked whether JKUAT’s disciplinary process was sufficiently unlawful to warrant intervention.

The judge concluded that Omwenga had not crossed that threshold.

The court relied on earlier decisions recognising employers’ managerial and disciplinary authority.

It also cited judicial warnings against courts effectively micromanaging workplace human-resource functions.

Employers must be allowed to investigate alleged misconduct and hear employees’ explanations.

Courts can intervene where employers disregard the law or fundamental procedural safeguards.

But they should not routinely replace internal disciplinary bodies with judicial proceedings.

For Omwenga, that distinction proved decisive.

The court dismissed her application dated May 14, 2026, and awarded costs to JKUAT.

However, the university cannot simply revive the old hearing notice.

Because interim orders had stopped the original proceedings, JKUAT must issue a fresh notice.

That notice must specify when and where Omwenga should attend the disciplinary hearing.

The underlying allegations therefore remain alive.

Omwenga has not been found guilty of abandoning or neglecting her duties.

Instead, the court has cleared the way for JKUAT to determine those allegations internally.

The ruling ultimately carries a simple but powerful message.

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A leave application is not the same thing as approved leave.

And where an employee believes a disciplinary process is procedurally defective, the objection should first be clearly raised.

For JKUAT, the judgement reinforces its authority to discipline staff over unauthorised absence.

For employees, it underlines the importance of securing written approval before staying away.

The disciplinary battle may therefore be only entering its next chapter.

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