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ELRCDismissedPetition (filed 12th February 2019) with Notice of Motion dated 11.2.2019· [2019] KEELRC 1645 (KLR)

Universities Academic Staff Union (UASU) v Cabinet Secretary, Ministry of Education & another [2019] KEELRC 1645 (KLR)

Employment and Labour Relations Court
14 May 2019
OMONESMUS N. MAKAU
1,435 words in judgment
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The bottom line

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Kenya's Employment and Labour Relations Court threw out the government's attempt to block a university lecturers' union case, ruling that disputed facts belong at trial, not in preliminary objections.

What this practically means

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Executive summary

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The Petitioner, a university academic staff union, filed a Notice of Motion and Petition on 12th February 2019 challenging the implementation of the December 2018 Sessional Paper on Reforming Education Training for Sustainable Development for Academic Staff in all Public Universities, contending that it breached its Collective Bargaining Agreement with public universities and was adopted without its participation, contrary to its constitutional rights including Article 41(5). It sought, among other reliefs, a conservatory order restraining implementation of the Sessional Paper without its input. The Respondents raised a Preliminary Objection dated 20th February 2019 arguing that the issues raised were already law under sections 53 and 54(4)(d) and (e) of the Universities Act, that the petitioner participated through its Secretary General's appointment to the taskforce, and that the petition was an abuse of process and incompetent. The court applied the Mukisa Biscuit test and found the objection did not raise pure points of law: allegations of the petitioner's participation and of the effect on collective bargaining rights were factual matters provable only by evidence, and counsel's attempt to introduce a gazette notice at the PO stage was rejected. The court declined to consider the merits of the objection, dismissed it with costs, and granted the respondents 14 days leave to file and serve responses to the motion and petition, with the substantive dispute to proceed.

Key legal issues

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01

Whether the respondents' Preliminary Objection raised pure points of law

Holding

The PO did not meet the Mukisa Biscuit threshold because it rested on factual matters requiring proof by evidence

Reasoning

The court held that the respondents' claims that the petitioner was accorded participation through its General Secretary's appointment to a taskforce, and that the Sessional Paper does not disregard the members' collective bargaining rights, were factual allegations that can only be established at trial. The counsel's attempt to prove such facts at the PO stage, including by a gazette notice, was rejected as evidence improper at that stage.

p. 3
02

Whether the court should consider the merits of the PO

Holding

The court declined to consider the merits once the PO failed the threshold test

Reasoning

Having found that the objection did not raise a pure point of law, the court reasoned there was no basis to proceed to its merits. The appropriate course was dismissal of the objection with costs and directions for the respondents to file responses to the pending motion and petition, allowing the substantive dispute to proceed to full hearing.

p. 3

Legal principles established

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  • A preliminary objection must raise a pure point of law, argued on the assumption that all facts pleaded are correct, and cannot be raised where any fact needs to be ascertained or where the exercise of judicial discretion is sought
  • A preliminary objection founded on contested factual matters, such as whether a party participated in the making of a policy, does not meet the threshold of a preliminary objection

Court orders

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  1. 1.The Preliminary Objection dated 20th February 2019 is dismissed with costs
  2. 2.Respondents granted 14 days leave to file and serve their responses to the Notice of Motion dated 11.2.2019 and the Petition dated 12th February 2019

Authorities

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Legislation

  • Universities Actsection 54(4)(d) and (e)
  • Universities Actsection 53
  • Universities Actsection 54
  • Constitution of Kenya, 2010Article 41(5)

Cases cited (4)

  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    [1969] EA 696
  • Robert N. Gakuru & Others v Governor Kiambu County & 3 others
    [2014] eKLR
  • Nairobi Metropolitan Psv Saccos Union Limited & 25 others v County of Nairobi Government & 3 others
    [2013] eKLR
  • Kenya Human Rights Commission v Attorney General & another
    [2018] eKLR
Jurisdiction invoked
Constitutional petition under the Constitution (Articles 41(5) invoked in submissions) challenging implementation of the December 2018 Sessional Paper; Employment and Labour Relations Court jurisdiction

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, "Universities Academic Staff Union (UASU) v Cabinet Secretary, Ministry of Education & another [2019] KEELRC 1645 (KLR)", Case Analysis (2019). Petition (filed 12th February 2019) with Notice of Motion dated 11.2.2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1645/eng@2019-05-14

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