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ELRCPartially AllowedPetition No 112 of 2019· [2020] KEELRC 874 (KLR)

Universities Academic Staff Union v Jomo Kenyatta University of Agriculture and Technology & 6 others [2020] KEELRC 874 (KLR)

Employment and Labour Relations Court
5 June 2020
MOMAUREEN ONYANGO
3,832 words in judgment
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The bottom line

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Kenya's Employment Court ruled that employers who withhold union dues owed to unions must pay up, with interest-worthy consequences.

What this practically means

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Executive summary

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The Petitioner, a trade union with a recognition agreement and negotiated CBAs with the Respondents (universities acting through the Public University Councils Consultative Forums), petitioned in July 2019 claiming failure to remit deducted union dues and agency fees, seeking Kshs.123,087,993.95, an order for monthly remittances under section 50 of the Labour Relations Act, declarations of breach of Articles 41 and 47 of the Constitution, and damages. Before judgment the Petitioner withdrew claims against the 2nd, 3rd, 5th and 6th Respondents, leaving costs only against them. The court framed four issues and held that the petition raised a proper constitutional question under Article 41(4), pleaded with sufficient precision per Anarita Karimi Njeru, but that failure to remit dues is not administrative action under Article 47, being merely a default on a statutory obligation. Judgment was entered against the 1st Respondent for Kshs.12,925,310.40 with costs; the 2nd Respondent admitted the debt and agreed to pay costs; the 4th and 7th Respondents were ordered to pay costs and remit any outstanding dues, the 4th having been shown by its own table to have paid after filing suit and the 7th having admitted intermittent remittances. No costs were awarded against the 3rd, 5th and 6th Respondents as the Petitioner failed to prove payment occurred after filing. All fees were awarded on the lower scale. Judgment delivered by Maureen Onyango, J, at Nairobi on 5th June 2020.

Key legal issues

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01

Whether the petition raises constitutional questions

Holding

The petition properly raises a constitutional question under Article 41(4) and was pleaded with sufficient precision; the Anarita Karimi Njeru threshold was met as regards Article 41.

Reasoning

The court examined the pleadings against the Anarita Karimi Njeru precision requirement. It found that the failure to remit deducted dues deprived the union of the funds needed to determine its administration, programmes and activities, organise, and collectively bargain, thereby infringing Article 41(4). The claim was properly set out in the petition and supporting affidavits with sufficient precision for the respondents to respond.

p. 5
02

Whether failure to remit union dues amounts to administrative action under Article 47

Holding

No; the claim under Article 47 fails.

Reasoning

Applying the definition of administrative action as a decision or implementation relating to the government's executive, the court held that failure to remit union dues and agency fees is a default in complying with a legal obligation under the Labour Relations Act, not administrative action. The respondents' obligation to remit arises from statute and the recognition agreement, not from an administrative decision.

p. 5
03

Whether the 1st, 4th and 7th Respondents failed to remit union dues

Holding

Yes. The 1st Respondent's averments went uncontroverted; the 4th Respondent made payments after filing of suit, proving non-remittance; the 7th Respondent admitted intermittent remittances.

Reasoning

The 1st Respondent did not respond, so the petitioner's averments against it are uncontroverted. The 4th Respondent's own table showed payments of Kshs.2,424,313.85 on 16th August 2019, after filing of suit, proving failure to remit as required by law. The 7th Respondent admitted at paragraph 6 of its replying affidavit that remittances were intermittent, breaching the remittance timelines in sections 48 and 49 of the Labour Relations Act.

p. 6

Legal principles established

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  • A union's rights under Article 41(4) of the Constitution to determine its administration, programmes and activities and to organise are realised only through membership funds, and an employer's failure to remit deducted union dues and agency fees infringes those rights.
  • Failure to remit union dues and agency fees is not administrative action under Article 47; it is a default to comply with a legal obligation under the Labour Relations Act.
  • A party seeking constitutional redress must set out with reasonable precision the provisions infringed and the manner of infringement (Anarita Karimi Njeru principle).

Court orders

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  1. 1.Judgment entered against the 1st Respondent in favour of the petitioner in the sum of Kshs.12,925,310.40 as prayed with costs
  2. 2.No further orders made against the 2nd Respondent, which admitted the debt and agreed to remit the outstanding sum and to pay costs
  3. 3.No orders for costs against the 3rd Respondent; petition against it stands withdrawn
  4. 4.The 4th Respondent to pay the petitioner's costs in addition to remitting any outstanding union dues and agency fees
  5. 5.No orders for costs against the 5th Respondent; suit against it stands withdrawn
  6. 6.Petition as against the 6th Respondent stands withdrawn with no orders for costs
  7. 7.The 7th Respondent to pay costs of the petition as against it in addition to any outstanding union dues and agency fees
  8. 8.All fees to be based on lower scale

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41(2), (4) and (5); Article 47(1) and (2); Article 159(2)(d); Article 48
  • Labour Relations Act, 2007Sections 48(2)(a) and (b), 49, 50(1), 75
  • Fair Administrative Action ActArticle 47 (as pleaded by petitioner)
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (7)

  • Anarita Karimi Njeru v Republic
    [1979] KLR 154
  • Aviation Workers Union v Kenya Airports Authority & Another
    [2019] eKLR
  • Kenya Engineering Workers Union v Jokali Handling Services Limited
    [2017] eKLR
  • Morgan Air Cargo Limited vs. Everest Enterprises Limited
    [2014] eKLR
  • Ethics and Anti-Corruption Commission vs. Nderitu Wachira & 2 Others
    [2016] eKLR
  • Joanes Okotch v Hilton Kenya Limited
    [2007] eKLR
  • Ismail Hassan Abdullahi v Kenya Ports Authority
    [2013] eKLR
Jurisdiction invoked
Article 41 of the Constitution and the Labour Relations Act, 2007 (employment and labour relations 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 v Jomo Kenyatta University of Agriculture and Technology & 6 others [2020] KEELRC 874 (KLR)", Case Analysis (2020). Petition No 112 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/874/eng@2020-06-05

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