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ELRCDismissedSuit dated May 30, 2022 (ELRC, Bungoma)· [2023] KEELRC 188 (KLR)

Kenya National Union of Nurses v Masinde Muliro University of Science and Technology (Cause E014 of 2022) [2023] KEELRC 188 (KLR)

Employment and Labour Relations Court
26 January 2023
JKJ. W. Keli
2,695 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to force a university to recognise a second nurses' union because the affected staff already belonged to another union with a binding agreement.

What this practically means

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Executive summary

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The claimant, a registered trade union for nurses, sued the respondent public university seeking an order compelling the university to sign a recognition agreement, continuation of check-off deductions under section 48 of the Labour Relations Act, and an injunction against victimisation of its members. The claimant said it recruited 19 of 29 nurses (a 66% simple majority) between February and March 2021; the respondent received Form S check-offs, deducted and remitted dues, but refused recognition, advising the claimant that recognition for public universities is concluded through the IPUCCF mechanism under the existing UASU recognition agreement. A conciliator recommended recognition, but the dispute remained unresolved. The court framed two issues: entitlement to recognition (and multiple union membership) and whether the orders sought could issue. The respondent's uncontroverted evidence was that the recruited staff were teaching staff in its school of nursing, already members of UASU enjoying a CBA adopted in ELRC Nairobi CBA No 1 of 2020, and that they had never resigned from UASU. The claimant filed no reply to that defence. Adopting Justice Maureen Onyango's holding that an employee cannot belong to more than one trade union, the court held recognition was not justified and would cause chaos in the university's management. Deduction and remittance of dues does not require a recognition agreement, and no evidence of harassment was led. The entire claim was dismissed with each party bearing its own costs. Judgment delivered at Bungoma on January 26, 2023 by J. W. Keli, Judge.

Key legal issues

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01

Whether the claimant was entitled to a recognition agreement under section 54 of the Labour Relations Act

Holding

No – recognition was not justified because the recruited staff were academic staff who remained members of UASU, which already had a recognition agreement and CBA with the employer

Reasoning

The claimant recruited 19 of 29 employees but the respondent's uncontroverted defence was that these were teaching staff in its school of nursing, already UASU members enjoying negotiated CBA terms. The claimant filed no reply to this defence. With no evidence of resignation from UASU, recognition of a second union would create duplicity and destabilise industrial relations.

p. 6
02

Whether an employee can be a member of more than one trade union

Holding

An employee cannot simultaneously be a member of more than one trade union; the court adopted Justice Maureen Onyango's holding in KNH v KNH Board

Reasoning

The court agreed with the authority cited by the respondent that multiple membership creating duplicity is impermissible, as multiple recognition of unions would breed chaos and undermine orderly collective bargaining and industrial peace. The teaching staff's interests were already covered by the UASU CBA.

p. 6
03

Whether deductions and remittance of union dues oblige an employer to sign a recognition agreement

Holding

Deduction and remittance of dues under section 48 does not require a recognition agreement; the two are distinct in law

Reasoning

The respondent had deducted and remitted dues pursuant to Form S since 2021 without objection. Relying on the KUDHEIHA v BATUK decision cited by the respondent, the court treated check-off and recognition as legally separate matters, so continued deductions did not found an entitlement to recognition.

p. 5

Legal principles established

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  • An employer shall recognise a trade union for collective bargaining only if it represents the simple majority of unionisable employees
  • An employee cannot be a member of more than one trade union at the same time

Court orders

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  1. 1.The entire claim is dismissed
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Labour Relations Actsection 54(1), (2), (3)
  • Labour Relations Actsection 48
  • Labour Relations Actsection 67
  • Constitution of Kenya, 2010Article 41

Cases cited (4)

  • Kenya union of Domestic Hotels and Educational Institutions Hospitals & Allied Workers (KUDHEHIA) v British Army Training Unit Kenya
    (2015) eKLR
  • Kenya Union of Commercial Foods And Allied Workers v Attorney General & another
    (2021) eKLR
  • Kenya National Union of Nurses v Kenyatta National Hospital Board & 21 others
    (2018) eKLR
  • Inter Public Universities Councils Consultative Forum of The Federation of Kenya Employers v Kenya union of Domestic Hotels and Educational Institutions Hospitals & Allied Workers (KUDHEHIA) and 4 others
    Employment and Labour Relations Court Nairobi CBA No 1 of 2020
Jurisdiction invoked
Article 41 of the Constitution and the Labour Relations Act (employment and labour relations jurisdiction of the ELRC)

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 National Union of Nurses v Masinde Muliro University of Science and Technology (Cause E014 of 2022) [2023] KEELRC 188 (KLR)", Case Analysis (2023). Suit dated May 30, 2022 (ELRC, Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/188/eng@2023-01-26

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