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ELRCDismissednot stated in extract· [2018] KEELRC 2162 (KLR)

Inter-Public Universities’ Councils Consultative Forum of Federation of Kenya Employers v Universities’ Academic Staff Union & 5 others [2018] KEELRC 2162 (KLR)

Employment and Labour Relations Court
6 April 2018
OMONESMUS MAKAU
2,133 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 refused to pause an order ending a university lecturers' strike, ruling the union could not benefit after skipping mandatory conciliation meetings.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Nairobi, per Onesmus Makau J, delivered a ruling on 16.3.2018 declaring a university staff strike unprotected under sections 76(b) and 78(1)(e) of the Labour Relations Act, ordering the union (respondent/applicant) to call off the strike, directing the claimant to present its counter-proposal for the 2017-2021 CBA for conciliation, protecting workers from victimisation upon compliance, and directing each party to bear its own costs. The union filed a Notice of Appeal and moved the court on 19.3.2018 for stay of the ruling pending appeal, contending that the appeal was arguable, would be rendered nugatory if the strike was called off, and that the ruling prematurely disposed of the suit and impermissibly referred the dispute to a second conciliation. The claimant and five interested parties opposed, arguing the strike was unprotected, affected 600,000 students, and that the ruling did not conclude the suit. The court framed a single issue: whether the applicant met the Order 42 rule 6(1) threshold. It found no substantial loss, since a successful appeal would allow resumption of the strike while continuing the strike would cause untold suffering; further, under section 77(2) of the Labour Relations Act, a party that deliberately failed to attend conciliation cannot seek relief under section 77(1)(b). Delay and security limbs were resolved in the applicant's favour but did not salvage the application. The motion was dismissed with costs.

Key legal issues

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01

Whether the applicant demonstrated substantial loss to warrant stay pending appeal

Holding

No substantial loss demonstrated; if the appeal succeeded the applicant could resume the strike, but if it failed the continuing strike would have inflicted untold suffering on students

Reasoning

The court balanced the interests of the applicant against the public interest of 600,000 students affected by the strike. The orders of 16.3.2018 merely directed the parties to conciliation under sections 76 and 77 of the Labour Relations Act, and granting stay would breach the statutory policy in section 77. The applicant had also failed to attend conciliation in good faith.

p. 3
02

Whether the applicant, having failed to attend conciliation, could obtain relief under section 77

Holding

No — section 77(2) bars relief to a party that failed to attend conciliation meetings

Reasoning

Counsel conceded conciliation had been attempted before the strike and the conciliator's report was informed by the applicant's failure to attend the 28.2.2018 meeting. Under section 77(2) a party that failed to attend any conciliation meeting may not seek relief under subsection (1)(b), so the applicant could not invoke the court's protection under that provision.

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03

Whether the application was made without inordinate delay and whether security was necessary

Holding

Application filed three days after the ruling — no inordinate delay; security not applicable since no money decree

Reasoning

The impugned ruling was delivered on 16.3.2018 and the stay application filed on 19.3.2018, satisfying the delay limb. On security, the claimant did not demonstrate why security should be deposited or in what terms, and since there was no money decree the requirement did not arise.

p. 3

Legal principles established

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  • A party who deliberately failed to attend conciliation meetings may not seek relief under section 77(1)(b) of the Labour Relations Act
  • Stay of execution should only issue where the applicant demonstrates substantial loss, absence of inordinate delay and willingness to furnish security

Court orders

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  1. 1.The Notice of Motion dated 19.3.2018 seeking stay of execution of the ruling of 16.3.2018 is dismissed
  2. 2.The application is dismissed with costs

Authorities

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Legislation

  • Labour Relations Actsection 76
  • Labour Relations Actsection 77
  • Labour Relations Actsection 78(1)(e)
  • Labour Relations Actsection 79
  • Civil Procedure RulesOrder 42 rule 6(1)
  • Constitution of KenyaArticle 41

Cases cited (2)

  • Wells Fargo Limited vs. Cyrus Kioko & 48 others
    [2015] eKLR
  • Teachers Service Commission vs. KNUT & KUPPET
    [202] eKLR
Jurisdiction invoked
Order 42 rule 6(1) of the Civil Procedure Rules; sections 76 and 77 of the Labour Relations Act; Article 41 of the Constitution

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, "Inter-Public Universities’ Councils Consultative Forum of Federation of Kenya Employers v Universities’ Academic Staff Union & 5 others [2018] KEELRC 2162 (KLR)", Case Analysis (2018). not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2162/eng@2018-04-06

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