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ELRCAllowedJudicial Review Motion dated 22nd May 2022· [2023] KEELRC 959 (KLR)

University Academic Staff Union (UASU) v Moi University Council & another (Judicial Review E004 of 2022) [2023] KEELRC 959 (KLR)

Employment and Labour Relations Court
28 April 2023
ANAbuodha N.
1,101 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court quashed Moi University's recruitment of Deans because it excluded the lecturers' union from the process, and ordered the university to include UASU.

What this practically means

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Executive summary

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The Applicant, the Universities Academic Staff Union (UASU), obtained leave on 5th May 2022 to commence judicial review proceedings and thereafter filed a substantive motion dated 22nd May 2022 seeking orders of certiorari and prohibition against the Respondents from enforcing proceedings, decisions and directives on intended interviews for the positions of Deans of all schools of Moi University, an order quashing those proceedings and decisions, and an order of mandamus compelling the Respondents to involve the union in the planning and conduct of the interviews. The union, through the joint affidavit of its chair and secretary, deponed that it had historically participated in such interviews under statutory provisions, the CBA, the Moi University Statute and a Recognition Agreement, and had protested its exclusion on several occasions. Despite service, the Respondents did not respond or file submissions. Counsel for the Applicant submitted that the exclusion assaulted the right to fair labour practices and fair administrative action, relying on Amos Kiumo, Kevin Mwiti and UASU v Machakos University. The court found the union a strong, well-known trade union whose exclusion from statutory amendments and from recruitment of Deans and Deputy Vice Chancellors required its participation and input, and endorsed the authorities on meaningful consultation. The court granted prayers 1, 2 and 3 of the motion and awarded the Applicant the costs of the application.

Key legal issues

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01

Exclusion of the union from recruitment processes and statutory amendments

Holding

The exclusion of UASU from the amendment of the 2nd Respondent's statute and from the recruitment of Deans and Deputy Vice Chancellors was a serious matter which required the union's participation and input; prayers 1, 2 and 3 were granted.

Reasoning

The court accepted the uncontroverted evidence that UASU had in the past participated in such interviews under statutory provisions, the CBA, the University Statute and a Recognition Agreement, and had repeatedly protested its exclusion. Relying on UASU v Machakos University and Amos Kiumo, the court held that meaningful participation requires willingness to consider stakeholders' views, and that the union's exclusion breached fair labour practices and fair administrative action.

p. 3

Legal principles established

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  • Although views expressed by stakeholders are not binding, public involvement cannot be meaningful if there is no willingness to consider their views
  • A primary stakeholder such as a recognised trade union must be afforded a reasonable opportunity to participate in processes affecting its members

Court orders

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  1. 1.Orders of Certiorari and Prohibition issued against the Respondents from enforcing the proceedings, decisions and/or directives on the intended interviews for the positions of Deans for all schools for Moi University (prayer 1)
  2. 2.The proceedings, decisions and/or directives of the Respondents quashed (prayer 2)
  3. 3.Order of Mandamus issued directing the Respondents to incorporate/involve the Applicant in the planning and/or proceedings leading to and/or the intended interviews for Deans for all schools for Moi University (prayer 3)
  4. 4.Costs of the application granted to the Applicant
Jurisdiction invoked
Judicial review jurisdiction of the Employment and Labour Relations Court (leave granted on 5th May 2022 to file substantive motion for certiorari, prohibition and mandamus)

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, "University Academic Staff Union (UASU) v Moi University Council & another (Judicial Review E004 of 2022) [2023] KEELRC 959 (KLR)", Case Analysis (2023). Judicial Review Motion dated 22nd May 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/959/eng@2023-04-28

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