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ELRCOtherCause No. 1272 of 2014 (Nairobi), consolidated with Kisumu ELRC Cause No. 276 of 2014· [2019] KEELRC 2500 (KLR)

Union of National Research Institutes Staff Of Kenya (UNRISK) v Kenya Sugar Research Foundation (KESREF) & 2 others [2019] KEELRC 2500 (KLR)

Employment and Labour Relations Court
29 January 2019
MOMaureen Onyango
3,706 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that KALRO inherited the unions' recognition agreements when research institutions merged, but the salary claims must restart as fresh disputes.

What this practically means

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Executive summary

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The claimant union (UNRISK) held recognition agreements with KESREF (signed 2004) and KARI (signed 2013) and, after forwarding CBA proposals and reporting trade disputes that went to a conciliator, sought orders compelling the respondents to effect payment of its harmonised CBA demands. Following the Kenya Agricultural and Livestock Research Act No. 17 of 2013, KESREF and KARI were merged into KALRO, the 3rd respondent. KALRO resisted, arguing it was not bound by the predecessors' recognition agreements, that the claimant lacked a simple majority of its unionisable employees, that salaries fell under the mandate of the Salaries and Remuneration Commission, and that the court lacked jurisdiction to set them. The court held that under Sections 53, 54 and 55 of the Act, staff were absorbed on same or improved terms and existing recognition agreements, liabilities and proceedings transferred to KALRO. The simple majority objection failed for want of evidence and because the law recognises no automatic lapse of a recognition agreement. However, the court agreed that the merger necessitated reorganisation of the claimant–KALRO relationship, so the consolidated suit could not be prosecuted as filed. The suit was terminated with directions to the parties to meet and agree a framework for future negotiations, preserving members' association rights, with each party bearing its own costs. Any fresh dispute must be processed afresh under the Act.

Key legal issues

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01

Effect of the merger of KESREF and KARI into KALRO on existing recognition agreements and CBA liabilities

Holding

Under Sections 53, 54 and 55 of the Kenya Agricultural and Livestock Research Act, staff were absorbed on same or improved terms, and existing recognition agreements, liabilities and legal proceedings transferred to KALRO

Reasoning

The court applied the statutory transfer provisions: every officer or member of staff of a former institution became an officer or staff of the Organisation on the same or improved terms and conditions of service. All rights, powers, liabilities and duties of former institutions vested in the Organisation, and pending legal proceedings were to be carried on by or against it without abating. Consequently the recognition agreements between the claimant and the 1st and 2nd respondents were taken over by the 3rd respondent.

p. 5
02

Whether the claimant had lost simple majority status for recognition purposes

Holding

The simple majority objection failed; there was no evidence of membership levels and no lawful process to terminate the recognition agreement had been initiated

Reasoning

The 3rd respondent's assertion that the claimant no longer enjoyed a simple majority was unsupported by any evidence of the numbers of employees who were union members after the merger. Further, the respondent had not initiated any process for terminating the recognition agreement on the basis of lack of simple majority, and the law provides no automatic lapse of a recognition agreement on that ground. Recognition was therefore not in issue; the real issue was negotiation of terms and conditions of service.

p. 5
03

Whether the suit could proceed as filed

Holding

No; the suit was terminated because the merger required reorganisation of the relationship between the claimant and KALRO, and any fresh dispute must be processed under the Act

Reasoning

While the recognition agreements survived the merger, the collapse of the 1st and 2nd respondents and other research institutions into one body made it necessary to reorganise the relationship between the claimant and the 3rd respondent. The claims concerning revision of existing CBAs could not be prosecuted as filed. The parties were directed to meet and agree on a relationship for future negotiations, and any resulting dispute would have to be processed afresh under the statute. Members' freedom of association was preserved.

p. 5

Legal principles established

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  • A recognition agreement existing with a dissolved predecessor institution is taken over by the successor entity under the transfer provisions of the statute, and there is no automatic lapse of a recognition agreement merely because the union's simple majority is unproven absent a lawful termination process
  • The Salaries and Remuneration Commission is only to be consulted at the time of negotiation of terms and conditions of employment touching on areas within its mandate; it does not feature in the reorganisation of recognition relationships

Court orders

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  1. 1.That the suit herein, Nairobi Cause 1272 of 2014 as consolidated with Kisumu ELRC Cause 276 of 2014, are not capable of being prosecuted as filed due to the impact of the Kenya Agricultural and Livestock Research Act which merged all research institutions dealing with research in agriculture and livestock under KALRO
  2. 2.That the claimant and 3rd respondent are directed to meet with a view to agreeing on a relationship for purposes of future negotiations
  3. 3.That members of the claimant absorbed by the 3rd respondent will continue with their membership as their right of association is not affected by the Kenya Agricultural and Research Act
  4. 4.That the suit is terminated and any dispute must be processed as a fresh dispute in the manner provided in the Act
  5. 5.That each party shall bear its costs

Authorities

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Legislation

  • Kenya Agricultural & Livestock Research ActSections 52, 53, 54, 55, 56, 57
  • Labour Relations ActSections 54(1), 57(1), 57(2), 61
  • Constitution of KenyaArticles 35, 41(2), 41(3), 41(4), 41(5), 230(4)(b), 260
  • Salaries and Remuneration Commission ActAct No. 11 of 2011 and SRC 2013 Regulations
  • Fair Administrative Action Actnot specified
  • State Corporations ActSection 2

Cases cited (6)

  • Peter Wambugu Kariuki & 16 Others –v- Kenya Research Institute
    [2013] eKLR
  • Chemilil Sugar Company Limited & 2 Others –v- Kenya Union of Sugar Plantation & Allied Workers
    [2014] eKLR
  • Agricultural Employers Association –v- Kenya Plantation & Agricultural Workers
    [2015] eKLR
  • Kenya Union of Printing, Paper Manufacturers & Allied Workers –v- Packaging Industries Limited & Another
    [2014] eKLR
  • Union of Kenya Civil Servants –v- Kenya County Government Workers Union & Another
    [2014] eKLR
  • Teachers Service Commission (TSC) –v- Kenya Union of Teachers (KNUT) & 3 Others
    [2015] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution (Employment and Labour Relations Court jurisdiction); Labour Relations Act

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, "Union of National Research Institutes Staff Of Kenya (UNRISK) v Kenya Sugar Research Foundation (KESREF) & 2 others [2019] KEELRC 2500 (KLR)", Case Analysis (2019). Cause No. 1272 of 2014 (Nairobi), consolidated with Kisumu ELRC Cause No. 276 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2500/eng@2019-01-29

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