Universities Academic Staff Union v Machakos University & another [2019] KEELRC 91 (KLR)
The bottom line
#Kenya's university staff promotion guidelines were struck down because lecturers' union was never consulted before they were adopted.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petition met the constitutional threshold
The Petition met the Anarita Karimi Njeru threshold as the alleged violations and manner of violation were pleaded with sufficient clarity
The Court applied the Anarita Karimi Njeru standard relied on by the Respondents and found the Petition particularised the constitutional norms alleged to have been violated and how they were violated, so the threshold objection failed.
Whether the Harmonised Criteria and Guidelines are terms and conditions of service within labour legislation
The Criteria and Guidelines fall squarely within terms and conditions of service, being a collective bargaining and employment matter under section 2 read with section 57 of the Labour Relations Act
The Court examined the Criteria and Guidelines and found they created new job designations, set grading nomenclature and minimum criteria for appointment and promotion. These matters directly impact terms and conditions of service, which are the embodiment of a collective agreement under the Labour Relations Act, and trigger the consultation requirements of sections 10(5) and 13 of the Employment Act.
Whether UASU was afforded a reasonable opportunity to participate
UASU, a primary stakeholder with a recognition agreement predating 2014, was not afforded a reasonable opportunity to participate; the Respondents did not discharge the burden of showing consultation
The Commission invited only Vice-Chancellors and Principals. No evidence — minutes or notes — was produced showing lecturers were consulted through departments. Applying the public participation standard in the Council of Governors case and the burden-shifting principle in Law Society of Kenya, the Respondents failed to demonstrate consultation. Consultation with organised labour is also a constitutional value under Articles 10(2)(a),(c) and 232(1)(d),(f).
Legal principles established
#- Where there is organised labour with a recognition agreement, the employer/regulatory authority must involve the trade union directly in formulating criteria affecting terms and conditions of service
- Vice-Chancellors and Principals, being the epitome of the employer, cannot represent employees or their trade union in consultations over terms and conditions of service
- Once a party asserts there was no public participation, the burden shifts to the respondent to show that there was
Court orders
#- 1.A declaration that the Harmonised Criteria and Guidelines for Appointment and Promotion of Academic Staff in Universities in Kenya dated 27 October 2014 are invalid, null and void for having been made in breach of Articles 10(2)(a), (c), 41(1),(2)(c), (4)(b) & 5 and 232(1)(d),(f) and sections 10(5) and 13 of the Employment Act, 2007
- 2.Each party to bear own costs
- Jurisdiction invoked
- Constitution of Kenya, 2010 (employment and labour relations jurisdiction of the Employment and Labour Relations Court); Universities Act No. 42 of 2012 and Labour Relations Act invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Universities Academic Staff Union v Machakos University & another [2019] KEELRC 91 (KLR)", Case Analysis (2019). Petition (not specified in judgment; filed 13 February 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/91/eng@2019-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.