Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in the judgment· [2022] KEELRC 1162 (KLR)

Universities Academic Staff Union, Egerton University Charter v Egerton University & 2 others (Petition E023 of 2021) [2022] KEELRC 1162 (KLR)

Employment and Labour Relations Court
24 May 2022
4,690 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court struck down Egerton University's move to cancel staff tuition waivers without consultation, but left its 2019 workload policy intact.

What this practically means

#

Executive summary

#
The Petitioner, a branch of the Universities Academic Staff Union representing staff of Egerton University, petitioned the Employment and Labour Relations Court claiming that the University unilaterally altered terms of the 2012 Collective Bargaining Agreement by introducing the Staff Workload Policy 2019 (raising workload from 18 to 24 CFs per year) and by a Notice of 25th August 2021 withdrawing tuition waivers for staff, spouses and children, all without consultation. The Petitioner sought declarations of violation of Articles 10, 41, 47 and 232, an injunction, and compensation. The Respondents argued the petition lacked constitutional precision, belonged in an ordinary employment cause, that the 2016 CBA had replaced the 2012 CBA's workload formula, and that the measures were justified austerity responses to a ballooning deficit. After considering written submissions, the court found that the tuition waiver benefit had been retained in the 2016 and 2020 CBAs, and that the unilateral notice lifting the waiver without consultation breached the CBAs and was illegal, null and void. However, the court declined to interfere with the Workload Policy 2019, holding that the University has the statutory mandate under section 27 of the Employment Act to regulate working hours and that the policy had no correlation with the CBA. The petition partially succeeded and partially failed. The court ordered that each party bear its own costs. Judgment was delivered virtually on 24th May 2022 by Lady Justice Hellen Wasilwa.

Key legal issues

#
01

Whether the Workload Policy 2019 unilaterally varied the CBA workload terms

Holding

The court held the 2016 CBA had already displaced the 2012 CBA workload formula, and the policy fell within the University's statutory mandate to regulate working hours; the court would not interfere

Reasoning

The court examined clause 24.15 of the 2016 CBA which it found set aside the previous workload formula in the 2012 CBA. It noted the 2016 CBA was itself replaced by the 2020 CBA. It accepted the University's mandate under section 27 of the Employment Act to regulate working hours and found the policy had no correlation with the CBA, so it declined to interfere with the policy document.

p. 9
02

Whether the withdrawal of tuition waivers breached the CBA

Holding

The Notice of 25th August 2021 lifting tuition waivers was in breach of the CBAs from 2012 to date, and was declared illegal, null and void

Reasoning

The court found the tuition waiver benefit introduced by the 2012 CBA was retained in both the 2016 and 2020 CBAs, the latter still in force. Despite this, the Respondents altered the provision without agreement or consultation with the petitioner. This constituted a clear breach of the CBAs from 2012 to date on tuition waivers, rendering the notice unlawful.

p. 9
03

Whether constitutional petition was the proper forum

Holding

The court did not strike out the petition on this ground; it determined the matter on its merits, finding partial success

Reasoning

The Respondents argued the dispute was contractual and ought to have been brought as an ordinary employment cause, invoking the doctrine of avoidance and Anarita Karimi Njeru precision. The court nonetheless examined the evidence and submissions and determined the issues, granting relief only in respect of the tuition waiver notice.

p. 8

Legal principles established

#
  • Terms and conditions of service embodied in a CBA can only be revised upon consultation with, and written notification to, the employees as required by section 10(5) of the Employment Act
  • A unilateral notice withdrawing CBA-guaranteed benefits without consultation is illegal, null and void

Court orders

#
  1. 1.Declaration that the notice issued by the Respondent lifting the waiver on tuition fees on staff with effect from July 2021 is in contravention of the existing CBA between the parties and is therefore illegal, null and void
  2. 2.Refusal to interfere with the Egerton University Staff Workload Policy 2019
  3. 3.Each party to bear its own costs

Authorities

#

Legislation

  • Labour Relations Actsections 14, 25, 57(1), 59
  • Fair Administrative Action Actsection 5(1)
  • Universities Actsections 13(1), 23, 35
  • Employment Act 2007sections 10(5), 27
  • Constitution of Kenya 2010Articles 1, 10, 22, 23, 41, 47, 232
  • Egerton University Charter/Statutes 2013sections 28(1)(f), 47, 47(4)

Cases cited (15)

  • ABE Semi B v The County Government of Tana River and others
    [2021] eKLR
  • Mui Coal Basin Community and 15 others v Permanent Secretary of Energy and 17 others
    [2015] eKLR
  • Universities Academic Staff Union v Machakos University and another
    [2019] eKLR
  • Universities Academic Staff Union TUM Chapter v Technical University of Mombasa
    [2019] eKLR
  • James Ang'awa Atanda & 10 others v Judicial Service Commission
    [2017] eKLR
  • Universities Academic Staff Union (UASU) v Salaries and Remuneration Commission & another
    [2019] eKLR
  • Amos Kiumo & 19 others v Cabinet Secretary, Ministry of Interior & Coordination of National Government & 8 others
    [2014] eKLR
  • Anarita Karimi Njeru v The Republic
    [1976-1980] KLR 1272
  • Mumo Matemu v Trusted Society of Human Rights Alliance and 5 others
    [2013] eKLR
  • Godfrey Paul Okutoyi v Habil Olaka (Executive Director, Kenya Bankers Association) & another
    [2018] eKLR
  • Harrikissoon v Attorney General of Trinidad and Tobago
    [1980] AC 265
  • Communication Commission of Kenya and others v Royal Media Services Limited & 5 others
    [2014] eKLR
  • Sumayan Athmani Hassan v Paul Masinde Simidi and another
    [2019] eKLR
  • National Bank of Kenya v Pipeplastic Samkolit (K) Limited
    Civil Appeal No. 95 of 1999
  • Kenya Tea Growers Association v Kenya Plantation and Agricultural Workers Union
    [2018] eKLR
Jurisdiction invoked
Constitutional petition alleging violation of Articles 10, 41, 47 and 232 of the Constitution, heard under the court's employment and labour relations jurisdiction

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Universities Academic Staff Union, Egerton University Charter v Egerton University & 2 others (Petition E023 of 2021) [2022] KEELRC 1162 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1162/eng@2022-05-24

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