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ELRCDismissedMotion dated 4 February 2021 (ELRC, Kisumu)· [2021] KEELRC 1338 (KLR)

Kenya Universities Staff Union & 3 others v Masinde Muliro University of Science & Technology [2021] KEELRC 1338 (KLR)

Employment and Labour Relations Court
1 July 2021
1,153 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court refused to jail Masinde Muliro University's acting VC for contempt because the union should have sought clarification of a conflicting court judgment instead.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Kisumu (Radido Stephen, Judge) determined a Motion dated 4 February 2021 by the Kenya Universities Staff Union seeking an order of committal against Prof. Solomon Shibairo, the acting Vice-Chancellor of Masinde Muliro University of Science and Technology, for contempt of orders issued on 12 April 2018 in which the Court restrained the Respondent from retiring the Claimants' members at 60 years, prohibited retirement before 65 years, declared retirement at 60 unlawful, and entered money judgments in favour of Richard Mark Busuru (Kshs 2,572,754.90), Richard Lusweti Wepukhulu (Kshs 379,185) and re-engagement for Alexander J.M. Mate. The applicant contended that despite service of those orders, the Respondent on 3 February 2021 issued retirement notices to five members who had not attained 65 years, contrary to Articles 47 and 50(1) of the Constitution. The Respondent admitted sending the notices but justified its action on a CBA registered on 3 July 2020 and the judgment of the Nairobi ELRC of 15 January 2021, which confirmed the CBAs as registered and expunged the 65-year retirement-age proposals as contrary to public policy and SRC guidelines. The Court found a local CBA of 19 May 2012 had provided for retirement at 65, but that the applicant was party to the Nairobi litigation whose judgment applied the public-sector retirement age to its members. Because the parties' interpretations of that judgment differed, the Court held there was no wilful disobedience and that the applicant should have sought clarification from the Nairobi Court. The Motion was dismissed with costs.

Key legal issues

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01

Whether the Respondent's retirement of union members at 60 years constituted wilful disobedience of the 12 April 2018 orders

Holding

No wilful disobedience was established; the Respondent acted on the strength of the Nairobi ELRC judgment of 15 January 2021, which confirmed the CBAs as registered on 3 July 2020 and expunged retirement-age proposals from them

Reasoning

The Court acknowledged the 2018 orders prohibiting retirement before 65 years, but noted that the applicant had been party to the Nairobi litigation in which the Court held that retirement in the public sector is governed by government policy and that parties cannot negotiate outside public policy and SRC guidelines. The Nairobi judgment expunged the 65-year retirement proposals from the CBAs and confirmed them as registered. Given the applicant's and Respondent's differing interpretations of that judgment, the Respondent's reliance on it negated wilfulness.

p. 3
02

The proper remedy where orders of one court are said to conflict with a later judgment of another court

Holding

The applicant should have sought clarification from the Nairobi Court that delivered the 15 January 2021 judgment instead of instituting contempt proceedings

Reasoning

The Court held that where two judgments of courts of coordinate jurisdiction bear on the same subject and a party's conduct rests on a good-faith interpretation of the later judgment, committal is not the appropriate avenue; clarification from the issuing court preserves the integrity of the orders without punishing an innocent party.

p. 3

Legal principles established

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  • Contempt/committal requires wilful disobedience of a court order; where a party acts in reliance on a subsequent judgment of a court of concurrent jurisdiction and the orders are open to differing interpretations, the proper course is to seek clarification from the court that issued the judgment rather than move for contempt

Court orders

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  1. 1.THE MOTION DATED 4 FEBRUARY 2021 IS DISMISSED WITH COSTS

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 50(1)

Cases cited (3)

  • Inter Public Universities Council Consultative Forum of the Federation of Kenya Employers v Kenya Union of Domestic, Hotels, Education Institutions & Hospital Workers
    Nairobi ELRC CBA 1 of 2020
  • Inter Public Universities Council Consultative Forum of the Federation of Kenya Employers v Universities Academic Staff Union
    Nairobi ELRC CBA No. 2 of 2020
  • Inter Public Universities Council Consultative Forum of the Federation of Kenya Employers v Kenya Universities Staff Union
    Nairobi ELRC CBA No. 3 of 2020
Jurisdiction invoked
Contempt/committal jurisdiction of the Employment and Labour Relations Court in a matter in which it had earlier issued orders of injunction, prohibition and declaration

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 & 3 others v Masinde Muliro University of Science & Technology [2021] KEELRC 1338 (KLR)", Case Analysis (2021). Motion dated 4 February 2021 (ELRC, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1338/eng@2021-07-01

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