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ELRCDismissedNot stated in the judgment (Claim instituted 8th July 2021 with Notice of Motion dated 7th July 2021)· [2021] KEELRC 326 (KLR)

Kenya Universities Staff Union(Kusu) Maasai Mara University Branch v Maasai Mara University & another [2021] KEELRC 326 (KLR)

Employment and Labour Relations Court
23 November 2021
1,705 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant union instituted a claim on 8th July 2021 on behalf of its member, Spencer Ololchike Sankale, a senior accountant at Maasai Mara University, alleging he was summarily dismissed on 17th June 2021 without hearing after acting as a whistleblower on the 'Mara Heist Expose' embezzlement allegations. Together with the memorandum of claim it filed a Notice of Motion dated 7th July 2021 seeking interim orders compelling the Respondent to reinstate the grievant pending hearing, under Article 41(1) of the Constitution and provisions of the Employment Act and ELRC Act. The Respondent raised a preliminary objection dated 26th July 2021 on four grounds: that the suit is sub judice given the pending Nairobi ELRC Petition No. E097 of 2021 filed by the grievant personally; that the union lacks locus standi to enforce the grievant's personal rights; that the suit offends privity of contract; and that the suit is an abuse of process and forum shopping. Both sides filed written submissions, the claimant urging consolidation with the Nairobi petition under Rule 23, the Respondent urging dismissal with costs. The court, in a ruling delivered virtually on 23rd November 2021 by Hellen Wasilwa J, held that although a related petition was pending in Nairobi, the parties were not the same because this claim was instituted by a union, not by Spencer personally; the preliminary objection was therefore without merit. On the merits of the application, the court held it prudent to hear the entire case before making final reinstatement orders. The application was dismissed with costs in the cause, and the case was directed to proceed on merit expeditiously and without delay.

Key legal issues

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01

Sub judice / abuse of process

Holding

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.

Reasoning

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.

p. 3
02

Interim reinstatement before full hearing

Holding

The application for interim reinstatement was dismissed because final orders of reinstatement could only issue after hearing the merits of the entire case.

Reasoning

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.

p. 3
03

Locus standi of the union

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The preliminary objection dated 26th July 2021 is dismissed as without merit
  2. 2.The Notice of Motion dated 7th July 2021 seeking interim reinstatement is dismissed
  3. 3.The case to proceed on merit expeditiously and without any delay
  4. 4.Costs in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 41(1)
  • Constitution of KenyaArticles 36 and 41
  • Employment ActSections 41(2) and 44
  • Employment and Labour Relations Court ActSection 12(1)(b)
  • Employment and Labour Relations Court (Procedure) RulesRule 17(1)(3) and (8); Rule 23
  • Civil Procedure ActSection 6
  • Labour Relations ActSection 4
  • Industrial Court ActSection 22

Cases cited (7)

  • Mukisa Biscuit case
  • Prisca Jepngetich v Generation Careers Readiness Social Initiative Limited
    [2021] eKLR
  • Republic v Karisa Chengo & 2 Others
    [2017] e-KLR
  • Union of National Research Institutes Staff of Kenya v Kenya Agricultural and Livestock Research Organization
    [2020] eKLR
  • Kazungu Ngari Yaa v Mistry V. Naran Mulji & Co
    [2014] eKLR
  • Joseph Muriithi Njeru v County Government of Kirinyaga
    [2020] eKLR
  • Leonard Omullo v National Land Commission
    [2021] eKLR
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

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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 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.