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ELRCDismissedNot stated in judgment (interlocutory ruling in a claim dated 24th September 2020)· [2020] KEELRC 7 (KLR)

Kenya Private Universities Workers Union v Catholic University of Eastern Africa [2020] KEELRC 7 (KLR)

Employment and Labour Relations Court
22 December 2020
1,383 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant union filed a statement of claim and notice of motion dated 24th September 2020 challenging circulars issued by the respondent university on 29th and 31st July 2020, by which the university unilaterally imposed a 30% pay cut on gross salaries and placed other employees on unpaid leave, allegedly without consulting the union, citing COVID-19. The union relied on its recognition agreement and collective agreement under sections 54 and 57 of the Labour Relations Act. In reply, the respondent filed a notice of preliminary objection and application dated 12th October 2020 seeking to strike out the claim as sub judice and an abuse of process, contending that the issues were live in Cause No. 4 of 2019 consolidated with Cause No. 239 of 2019 (concerning the validity of the recognition agreement, whether the union had attained simple majority, and refusal to deduct union dues), and that the union lacked locus standi. The court framed two issues: sub judice and standing. Applying the principles in Republic v Paul Kihara Kariuki ex parte Law Society of Kenya, it held the causes of action in the two matters were different - the instant claim arose from the July 2020 circulars - so the suit was not sub judice. On standing, it held that under sections 62 and 73 of the Labour Relations Act, section 22 of the ELRC Act and Rule 5 of the Court Rules, a trade union may report a dispute and file suit for its members without a recognition agreement, which is only necessary for section 54 collective bargaining. The respondent's application dated 12th October 2020 was dismissed; the claimant has locus standi; directions were reserved on the claimant's application; costs were in the cause.

Key legal issues

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01

Whether the suit is sub judice

Holding

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)

Reasoning

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.

p. 2
02

Whether the claimant union has locus standi

Holding

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

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The respondent's application and objections dated 12th October, 2020 are found without merit and dismissed
  2. 2.A finding that the claim is not sub judice and the claimant has the requisite locus standi to file suit
  3. 3.The court to give directions with regard to the claimant's application dated 24th September, 2020
  4. 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

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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, "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.