Kenya Private Universities Workers Union v Catholic University of Eastern Africa [2020] KEELRC 7 (KLR)
The bottom line
#Kenya's Employment Court ruled a union can sue an employer over pay cuts without a recognition agreement, and dismissed the university's attempt to strike out the case.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is sub judice
The suit is not sub judice because the cause of action (the July 2020 circulars on 30% pay cuts and unpaid leave) differs from the issues in Cause No. 4 of 2019 consolidated with Cause No. 239 of 2019 (recognition agreement validity and union dues)
Applying the sub judice principles from the Law Society of Kenya case, the court compared the claims. Cause No. 4 of 2019, filed by the university, challenges the recognition agreement and a strike; Cause No. 239 of 2019 concerns refusal to deduct union dues. The instant claim arises from distinct facts - the unilateral circulars of 29th and 31st July 2020 imposing pay cuts and unpaid leave. Even where parties are the same, a different cause of action defeats sub judice.
Whether the claimant union has locus standi
The claimant has proper standing; a registered trade union may report a trade dispute and file suit on behalf of its members without a recognition agreement or proof of simple majority
Under sections 62 and 73 of the Labour Relations Act, 2007 a union may report a dispute to the Minister and, if unresolved, file it in court under Rule 5 of the Court Rules. Section 22 of the Employment and Labour Relations Court Act, 2011 allows a union to represent its members before the court without a recognition agreement or collective agreement. A recognition agreement is only necessary for section 54 collective bargaining. Here the union sues as a party, not merely as representative.
Legal principles established
#- For the sub judice doctrine to apply, there must be two or more suits in which the matters in issue are directly and substantially the same, the parties are the same or claim under them, litigating under the same title, and the suits are pending in a court of competent jurisdiction
- A trade union does not require a recognition agreement or collective agreement to represent its members or file suit in the Employment and Labour Relations Court
- A recognition agreement is only necessary for purposes of section 54 of the Labour Relations Act with regard to negotiations for a collective agreement
Court orders
#- 1.The respondent's application and objections dated 12th October, 2020 are found without merit and dismissed
- 2.A finding that the claim is not sub judice and the claimant has the requisite locus standi to file suit
- 3.The court to give directions with regard to the claimant's application dated 24th September, 2020
- 4.Costs in the cause
- Jurisdiction invoked
- Sections 62 and 73 of the Labour Relations Act, 2007 read together with section 22 of the Employment and Labour Relations Court Act, 2011 and Rule 5 of the Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Private Universities Workers Union v Catholic University of Eastern Africa [2020] KEELRC 7 (KLR)", Case Analysis (2020). Not stated in judgment (interlocutory ruling in a claim dated 24th September 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/7/eng@2020-12-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.