University of Nairobi v Kenya Universities Staff Union & 3 others [2018] KEELRC 2163 (KLR)
The bottom line
#Kenya's Employment Court declared a university workers' strike illegal because the union skipped mandatory conciliation before issuing its strike notice.
What this practically means
#Executive summary
#Key legal issues
#Whether the strike called on 2.3.2018 vide notice dated 23.2.2018 was lawful and protected
The strike was unprotected and unlawful because the strike notice was served before the dispute was taken through conciliation as required by sections 76 and 78(1)(e) of the Labour Relations Act.
Sections 76 and 78(1)(e) prescribe a mandatory procedure before a protected strike: the dispute must concern terms and conditions of employment or recognition, must be unresolved after conciliation, and seven days' written notice must be given. The strike notice dated 23.2.2018 was issued before conciliation, breaching that mandatory procedure. Non-compliance exposes participants to the consequences in section 80(1). Accordingly the strike is unprotected.
Whether the applicant had locus standi and was estopped from seeking relief under section 77
The applicant had standing and was not estopped; the nature of the dispute underlying the strike is secondary to the legality of the strike itself.
The respondent argued that under the 2006 recognition agreement the individual universities surrendered power to negotiate salary and house allowance to the IUCCF, so the applicant lacked standing. The court held that once the applicant was served with a strike notice, it was entitled to apply under section 77 if it believed the strike was prohibited or unprotected. The respondent also failed to prove on a balance of probability that the applicant was to blame for the stalled negotiations.
Legal principles established
#- For a strike to be protected in Kenya it must comply with Part X of the Labour Relations Act, especially sections 76 and 78; failure to refer the dispute to conciliation before issuing a strike notice renders the strike unprotected.
- A party served with a strike notice has locus standi to apply for relief under section 77 of the Labour Relations Act, and the nature of the underlying dispute is secondary to the legality of the strike.
Court orders
#- 1.Application allowed in terms of prayers 2, 4, 5 and 6 of the Notice of Motion dated 23rd March 2018
- 2.The dispute cited in the strike notice referred to the C.S. Labour to assist the parties resolve it through conciliation within 60 days
- 3.The Respondent to call off the strike forthwith and the employees to resume work on Monday 9th April 2018 at 08.00 hours
- 4.The claimant to present through IUCCF to the C.S Labour her counter proposal for the 2017-2021 CBA and serve the respondent within 21 days
- 5.If the respondent complies, her members shall not be victimized in any way for participating in the unprotected strike
- 6.Each party to bear his or her own costs
- 7.Suit to be mentioned on a date to be agreed to confirm compliance
- Jurisdiction invoked
- Section 77(1) of the Labour Relations Act read together with Article 41 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "University of Nairobi v Kenya Universities Staff Union & 3 others [2018] KEELRC 2163 (KLR)", Case Analysis (2018). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2163/eng@2018-04-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.