Kenya Universities Staff Union(Kusu) Maasai Mara University Branch v Maasai Mara University & another [2021] KEELRC 326 (KLR)
The bottom line
#Kenya's Employment Court allowed a union to sue on behalf of a dismissed worker but refused to reinstate him before hearing the full case.
What this practically means
#Executive summary
#Key legal issues
#Sub judice / abuse of process
The preliminary objection on sub judice fails because the parties in this claim and the pending Nairobi petition are not the same - this claim is brought by the union, not by Spencer personally.
The court acknowledged the existence of the pending Nairobi ELRC Petition E097 of 2021 filed by the grievant. However, it held that despite that overlap in subject matter, the parties differ: this cause was instituted by the union, not by Spencer. On that basis the suit could not be said to be strictly sub judice between the same parties, and the objection was found to be without merit.
Interim reinstatement before full hearing
The application for interim reinstatement was dismissed because final orders of reinstatement could only issue after hearing the merits of the entire case.
The grievant had already been summarily dismissed on 17th June 2021. The court reasoned that, given the dismissal had already taken place, the appropriate course was to hear the full case on its merits before determining whether reinstatement should be ordered, rather than granting the interim relief sought in the motion.
Locus standi of the union
The locus standi and privity objections were implicitly rejected with the dismissal of the preliminary objection; the union's representational capacity was anchored on membership and the CBA.
The claimant submitted, citing authority, that representation is a constitutional right under Articles 36 and 41 and Section 4 of the Labour Relations Act, and that by virtue of the grievant's membership and the CBA with the 1st Respondent, the union acquired the right to represent him. The court found the preliminary objection generally without merit and directed the case to proceed on merit.
Legal principles established
#- A preliminary objection on sub judice fails where the parties in the two suits are not identical; a suit instituted by a union on behalf of its member is not the same as the member's personal suit.
- By virtue of membership of a trade union and a CBA, a union acquires the right to represent an employee in agitating for his rights, including filing suit (as submitted for the claimant and not displaced).
Court orders
#- 1.The preliminary objection dated 26th July 2021 is dismissed as without merit
- 2.The Notice of Motion dated 7th July 2021 seeking interim reinstatement is dismissed
- 3.The case to proceed on merit expeditiously and without any delay
- 4.Costs in the cause
- Jurisdiction invoked
- Article 41(1) of the Constitution, Sections 41(2) and 44 of the Employment Act, Section 12(1)(b) of the Employment and Labour Relations Court Act and Rule 17(1),(3) and (8) of the Employment and Labour Relations Court (Procedure) Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Universities Staff Union(Kusu) Maasai Mara University Branch v Maasai Mara University & another [2021] KEELRC 326 (KLR)", Case Analysis (2021). Not stated in the judgment (Claim instituted 8th July 2021 with Notice of Motion dated 7th July 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/326/eng@2021-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.