Union Of Kenya Civil Servants v Principal Secretary, Ministry of Tourism and Wildlife & another [2021] KEELRC 1642 (KLR)

The Court relied on Article 162(2)(a) and section 12(1)(b) and (2) of the Employment and Labour Relations Court Act, which confers exclusive original jurisdiction over disputes between employers and trade unions. Since the Petitioner is a registered trade union with members working for the 2nd Respondent and a recognition agreement, the dispute falls squarely within the Court's jurisdiction notwithstanding the 1st Respondent's objection.

The Court accepted that section 9 of the State Corporations Act authorises the parent ministry to supervise a State Corporation and issue policy directions. The letter merely reiterated the findings made in the College's own submissions and initiated administrative action by the Council, which had not been acted upon. Absent proof that the directive was an error of law or beyond statutory power, illegality was not established.

The Court found the Petitioner did not demonstrate how Article 10 (public participation) applies to an employment situation, nor that any member lost employment through the impugned letter. The non-renewal of lapsed fixed term contracts was lawful, and the closure was a commercial decision of an employer in a private employment relationship, outside the scope of Article 47 and the Fair Administrative Actions Act. Sections 35 and 40 of the Employment Act were not breached.

The Council had not deliberated or passed any resolution to close the Hotel or satellite campuses or terminate any employees; no employees had been terminated. The Petitioner's claims rested on speculative future consequences of a directive that the College Council had placed on hold while seeking audience with the Ministry, so the dispute had not crystallised.