Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedPetition No 037 of 2022· [2023] KEELRC 666 (KLR)

Esevwe & 11 others v University of Nairobi; Attorney General (Interested Party) (Petition E037 of 2020) [2023] KEELRC 666 (KLR)

Employment and Labour Relations Court
16 March 2023
5,487 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

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

#
Ten unionisable employees of the University of Nairobi petitioned the ELRC seeking declarations that workers have a constitutional right to join or leave trade unions of their choice under Articles 36 and 41 of the Constitution, orders compelling the University to implement Form S check-off deductions in favour of the Kenya Tertiary and Schools Workers Union (KETASWU), compensation to KETASWU of unremitted dues, injunctions against victimisation, and an order directing execution of a recognition agreement under section 54 of the Labour Relations Act. The Respondent opposed, asserting three existing recognition agreements with UASU, KUSU and KUDHEIHA, that KETASWU fell far short of a simple majority of its 5250-strong unionisable workforce, and that the Petition was res judicata. The Interested Party, the Attorney General, sought removal from the proceedings. The preliminary objection dated 23rd March 2023 was withdrawn and not determined. Applying section 7 of the Civil Procedure Act and Henderson v Henderson, the court found the petition substantially similar to Petition 112 of 2018, in which Justice Maureen Onyango on 5th March 2021 dismissed parallel prayers compelling deduction and remission of dues to KETASWU and a recognition agreement; that judgment was unappealed and remained valid. The court also found no evidence KETASWU met the simple majority threshold, endorsed the principle that multiple union recognition for one employer invites industrial chaos, and struck out the Attorney General. All prayers were dismissed; parties were urged to attempt conciliation; each party was ordered to bear their own costs.

Key legal issues

#
01

Whether the Petition is res judicata

Holding

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

Reasoning

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.

p. 7
02

Whether KETASWU met the simple majority threshold for recognition

Holding

No; KETASWU's claimed membership of 498 falls far short of a simple majority of the Respondent's 5250-strong unionisable workforce

Reasoning

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.

p. 9
03

Whether the Attorney General should remain a party

Holding

The Attorney General was struck off from the petition as he had no role in an internal matter of the Respondent

Reasoning

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.

p. 10

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. 1.The 1st interested party Hon. the Attorney General is struck off from the petition
  2. 2.Prayers 1-VIII of the petition are not merited and are dismissed
  3. 3.Parties are urged to meet with a conciliator to resolve their grievances amicably
  4. 4.Each party is ordered to pay their own costs

Authorities

#

Legislation

  • Constitution of Kenya 2010Articles 36, 40, 41, 41(2)(c), 159(2)(d), 48
  • Labour Relations Act 2007sections 4, 17, 48(1)(2)(3), 48(6), 49, 50, 54(1)
  • Employment Act 2007sections 19(1)(f), 46(c)(d)(e)(f)
  • Civil Procedure Actsection 7
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013Rule 2
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (13)

  • Mukisa Biscuits Manufacturing Co Ltd versus West End Distributors Ltd
    (1969) EA 696
  • Henderson versus Henderson
    1843 ALL ER 378
  • Management Corporation Stratta Title Plan No. 301 versus Lee Tat Development Pte Ltd
    2009 S GHC 234
  • John Florence Maritime Services Limited & Another versus Cabinet Secretary for Transport and Infrastructure and 3 Others
    2015 eKLR
  • Accredo AG & 3 Others vs Stefano Uccelli & Another
    2019 eKLR
  • Musankishay Kalala Paulin vs Director Investigations & 4 Others
    2022 eKLR
  • Kingoro vs Chege and 3 Others
    (2002) 2 KLR 243
  • Garden Square Limited vs. Sammy Boit Kogo & Another
    Nairobi (Milimani) HCCC No. 1266 of 2003 [2003] KLR 20
  • Kenya Commercial Bank Ltd vs Benjoh Amalgamated
    Civil Appeal No 107 of 2010
  • The Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others
    [2017] eKLR
  • Kenya Union of Commercial Food & Allied Workers vs Hon the Attorney General & COTU (interested party)
    Petition no 175 of 2019
  • Peter Karegua Mwangi & Other vs Registrar of Trade Unions & Others & KUDHEIHA as interested party
    Appeal No 26 of 2020
  • Nairobi ELRC Petition 112 of 2018 (as consolidated with Cause no 25 of 2019)
    judgment delivered 5th March 2021 by Justice Maureen Onyango
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.