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ELRCDismissedPetition dated 28th January 2016· [2016] KEELRC 1371 (KLR)

Kenya Universities Staff Union v Frank Esevwe & 5 others [2016] KEELRC 1371 (KLR)

Employment and Labour Relations Court
24 March 2016
ANAbuodha Jorum Nelson
1,689 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that employees paying union dues cannot be barred from voting or contesting in union elections.

What this practically means

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Executive summary

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The petitioner, Kenya Universities Staff Union (KUSU), a trade union representing employees of public and private universities in grades 5-14 under a recognition agreement with the University of Nairobi Council, filed a petition with a Notice of Motion seeking interim injunctive orders restraining the respondents from inciting, commencing, participating in or actualizing any disruption of its elections scheduled for 13th February 2016. The petitioner contended that the respondents had not complied with its membership criteria - application for admission and remittance of monthly contributions of 1% of basic salary - and were barred by Rule 6 of its 2016 election rules. The 1st respondent, a driver at the University of Nairobi, deponed that he was a fully paid-up member who had paid the Kshs.5,000 nomination fee, was entitled under section 33 of the Labour Relations Act 2007 to vote, and denied any intention to disrupt the elections. The court perused schedule 1 of the recognition agreement and found no express exclusion of the respondents; coupled with their contribution of union dues, it held they could not be excluded from membership. Article 5(a) of the petitioner's constitution, open to non-teaching employees and allied workers, covered them, and belonging to a union of one's choice is a constitutional right. The court discharged the order of 9th February 2016 suspending the elections and directed that the respondents be allowed to peacefully participate as voters or candidates for any available seat, subject to the petitioner's constitution and election rules.

Key legal issues

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01

Eligibility of the respondents for membership of and participation in the petitioner's elections

Holding

The respondents are members of the petitioner entitled to vote and contest in the elections

Reasoning

Schedule 1 of the recognition agreement did not expressly exclude the respondents, and they had been making union dues contributions to the petitioner. Article 5(a) of the petitioner's constitution was broad enough to cover non-teaching employees such as the respondents, who were drivers. Under section 33 of the Labour Relations Act a member not in arrears of more than 13 weeks is entitled to vote.

p. 4
02

Whether the elections should proceed unhindered

Holding

The interim order suspending the elections was discharged and the respondents allowed to participate peacefully

Reasoning

The respondents denied any intention to disrupt the elections and undertook to participate peacefully. The court held that membership of a union of one's choice is a constitutional right and directed that the respondents participate as voters or candidates subject to the petitioner's constitution and election rules.

p. 4

Legal principles established

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  • Where a recognition agreement does not expressly exclude employees and they have been making union dues contributions, they cannot be excluded from union membership
  • Membership of a trade union of one's choice is a constitutional right

Court orders

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  1. 1.Discharge of the order made on 9th February 2016 suspending the elections scheduled for 13th February 2016 or any other date subsequently
  2. 2.That the respondents be allowed to peacefully participate in the petitioner's elections either as voters or candidates for any available seat subject to petitioner's constitution and election rules

Authorities

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Legislation

  • Labour Relations Actsections 54, 55
  • Labour Relations Act 2007section 33
  • Constitution of Kenya, 2010Article 41
Jurisdiction invoked
Article 41 of the Constitution of Kenya, 2010 and the Labour Relations Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Universities Staff Union v Frank Esevwe & 5 others [2016] KEELRC 1371 (KLR)", Case Analysis (2016). Petition dated 28th January 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1371/eng@2016-03-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.