Esevwe & 11 others v University of Nairobi; Attorney General (Interested Party) (Petition E037 of 2020) [2023] KEELRC 666 (KLR)
The bottom line
#The Employment and Labour Relations Court dismissed a union recognition petition against the University of Nairobi because the same issues had already been decided and a new union lacked majority support.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petition is res judicata
The Petition is res judicata, its issues and remedies having been determined in Petition 112 of 2018 (judgment of 5th March 2021 by Justice Maureen Onyango) which was not appealed
The court compared the reliefs and issues in the present petition with those in the earlier petition and found them similar; the only differences were the parties' identity (employees instead of the union) and some evidentiary matters such as notices of withdrawal. Under section 7 of the Civil Procedure Act and Henderson v Henderson, matters that ought to have been brought forward were covered. The earlier judgment stood unappealed and valid.
Whether KETASWU met the simple majority threshold for recognition
No; KETASWU's claimed membership of 498 falls far short of a simple majority of the Respondent's 5250-strong unionisable workforce
The court accepted the Respondent's evidence that its total workforce is 5250 staff against KETASWU membership claims of about 498, and found no evidence that the simple majority threshold under section 54(1) of the LRA had been met. The staff were already represented by UASU, KUSU and KUDHEIHA, and recognising additional unions would create industrial chaos.
Whether the Attorney General should remain a party
The Attorney General was struck off from the petition as he had no role in an internal matter of the Respondent
The court agreed with the Interested Party's submission that he had no stake or legal interest in the matter and that his removal would cause no injustice, being consistent with Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013.
Legal principles established
#- Res judicata bars relitigation of matters that were or ought to have been raised in a former suit between same parties litigating under the same title and finally determined by a competent court
- Recognition of multiple unions by a single employer is a recipe for industrial chaos; section 54(1) LRA simple-majority requirement is constitutional
- A new union registering where other unions exist must demonstrate a defined and distinct area of operation not present in the existing unions
Court orders
#- 1.The 1st interested party Hon. the Attorney General is struck off from the petition
- 2.Prayers 1-VIII of the petition are not merited and are dismissed
- 3.Parties are urged to meet with a conciliator to resolve their grievances amicably
- 4.Each party is ordered to pay their own costs
- Jurisdiction invoked
- Articles 36 and 41 of the Constitution of Kenya 2010; Employment and Labour Relations Court jurisdiction over constitutionalised labour rights
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Esevwe & 11 others v University of Nairobi; Attorney General (Interested Party) (Petition E037 of 2020) [2023] KEELRC 666 (KLR)", Case Analysis (2023). Petition No 037 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/666/eng@2023-03-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.