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ELRCPartially AllowedNot stated in judgment (three interlocutory applications: Claimant's dated 15.11.2021 and 14.12.2021; Respondent's dated 5.1.2022)· [2022] KEELRC 1587 (KLR)

Kenya Universities Staff Union (Kusu) Maasai Mara University Branch v Maasai Mara University & 2 others (Cause E060 of 2021) [2022] KEELRC 1587 (KLR)

Employment and Labour Relations Court
16 June 2022
HWHellen Wasilwa
5,109 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court ruled that a signed collective bargaining agreement must be paid even when an employer claims it has run out of money.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court (Hellen Wasilwa, J) disposed of three interlocutory applications arising from non-implementation of the 2017/2021 CBA between the Claimant union and the Respondent university, itself the subject of the judgment in ELRC CBA 1 of 2020 delivered by Maureen Onyango, J on 3rd July 2020. The Claimant sought temporary injunctions restraining further wage or salary reduction, an order compelling compliance with the ELRC CBA 1 of 2020 judgment, disclosure of employee lists since the 2017/2021 CBA engagements, and payment of full November 2021 salaries. The Respondents, through Registrar Samuel Partoip, opposed, contending the government released only Kshs 38,136,022 against a required Kshs 118,076,470 for the financial year 2021/2022, that funds were depleted after four months of implementation (July to October 2021), and sought to stay, discharge or vary the interim orders of 18th November 2021 so as to pay old salaries. KUDHEIHA, the interested party, supported the Claimant. The court held that a signed CBA remains in force and implementable unless amended by agreement or replaced by a new CBA, of which there was no evidence; lack of funds was a matter to be resolved by seeking funds or negotiating, not by unilateral suspension; and the court had no authority to alter a freely negotiated CBA. The Claimant's applications were found merited, an order compelling compliance with the ELRC CBA 1/2020 judgment was issued, the Respondent's application was dismissed, and costs were awarded in the cause.

Key legal issues

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01

Whether the Respondents could suspend implementation of the 2017/2021 CBA on the ground of lack of funds

Holding

The CBA remains in force and implementable unless amended by agreement or replaced by a new CBA; lack of funds is a matter to be resolved by seeking funds or negotiating with the Claimant, not by unilateral suspension

Reasoning

The court held that parties are bound by a signed CBA until it is amended by agreement or superseded. There was no evidence of a replacement CBA. The Respondents' plea of depleted funds was not a lawful ground to stop payment; the proper course was to seek the missing funds from the exchequer or negotiate with the union, which they had not done. The Respondents remained free to negotiate implementation modalities but could not renege.

p. 9
02

Whether the interim injunction orders of 18th November 2021 should be set aside for non-disclosure of material facts

Holding

The Respondent's application to set aside the orders was dismissed; the Claimant's applications were found merited and compliance with the judgment in ELRC CBA 1/2020 was ordered

Reasoning

The court treated the controversy as one concerning implementation of a subsisting CBA and the judgment in ELRC CBA 1/2020. Finding the Claimant's applications merited, it issued an order compelling compliance with that judgment, and dismissed the Respondent's application to discharge the interim orders, leaving the parties free to negotiate implementation but not to renege on the CBA.

p. 10

Legal principles established

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  • Once parties sign a collective bargaining agreement, it remains in force and implementable unless amended by agreement or replaced by a new CBA; a party cannot unilaterally renegade on it citing lack of funds.
  • A court has no authority to alter a CBA freely negotiated and signed by the parties.

Court orders

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  1. 1.Order compelling the Respondents to comply with the Judgment as issued by the Honourable Court through ELRC CBA 1/2020 (the 2017/2021 CBA)
  2. 2.Claimant's applications allowed
  3. 3.Respondent's application dated 5th January 2022 dismissed
  4. 4.Costs in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 41(1)
  • Civil Procedure ActSection 3A (also sections 1A, 1B and 63(e) invoked in the Respondent's application)
  • Civil Procedure RulesOrder 40(2); Order 51 Rule 15
  • Employment and Labour Relations Court ActSections 12 and 41(2)
  • Employment ActSections 19, 94 and 26(2)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 17 (including 17(3) and (7))
  • Labour Relations ActSection 62

Cases cited (8)

  • Giella V Cassman Brown and Company Limited
    (1973) EA 358
  • Mrao Limited V First American Bank of Kenya Limited & 2 others
    [2003] eKLR
  • Waithaka V Industrial & Commercial Development Corporation
    [2001] KLR 374
  • Republic V Business Premises Rent Tribunal Interested Party John Mwangi Muturi & 3 others
    [2016] eKLR
  • Pius Kipchirchir Kogo V Frank Kimeli Tenai
    [2018] eKLR
  • Kenya Union of Domestic Hotels Educational Institutions Hospitals & Allied Workers v Naaro High School
    [2014] eKLR
  • Industrial Court of Kenya Cause No. 39 of 2008 between KUDHEIHA V. Masii Secondary School
  • Cause 110 of 2005 (KUDHEIHA Workers) V. Musa Gitau Primary School
Jurisdiction invoked
Article 41(1) of the Constitution; sections 12 and 41(2) of the Employment and Labour Relations Court Act

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 & 2 others (Cause E060 of 2021) [2022] KEELRC 1587 (KLR)", Case Analysis (2022). Not stated in judgment (three interlocutory applications: Claimant's dated 15.11.2021 and 14.12.2021; Respondent's dated 5.1.2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1587/eng@2022-06-16

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