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ELRCPartially AllowedPetition (ELRC, Kisumu), filed 9 March 2023· [2023] KEELRC 1127 (KLR)

Kenya Universities Staff Union v Kisii University (Petition E007 of 2023) [2023] KEELRC 1127 (KLR)

Employment and Labour Relations Court
10 May 2023
RSRadido Stephen
2,950 words in judgment
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The bottom line

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Kenya's Employment and Labour Relations Court voided Kisii University's recruitment of three Registrars because the adverts ignored the University's own 2014 Scheme of Service qualifications.

What this practically means

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Executive summary

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Kenya Universities Staff Union petitioned the Employment and Labour Relations Court at Kisumu against Kisii University's recruitment advertised on or about 17 February 2023 for five positions: three Registrar posts, Chief Planning Officer and Human Resource Manager. The Union alleged the advertisement violated the University's Career Progression Guidelines (Scheme of Service) 2014, various statutes and the Constitution, and that recruitment could not lawfully proceed without a substantive Chair of Council. It sought declarations of constitutional violation, certiorari, mandamus, prohibition and a restart of the process. The University objected that the dispute was a collective grievance under the recognition agreement and that the Petition disclosed no constitutional issues. The Court held the dispute transcended a trade dispute since recruitment was open to non-members, and fell within the exception to the exhaustion doctrine recognised in the Ramogi case. It agreed the Petition raised no constitutional issues but declined to strike it out, treating costs as sufficient. The confirmations dispute was moot as the University had stopped the process. On the merits, the Court found the advertisements for the three Registrar positions omitted mandatory Scheme of Service qualifications (Associate Professor rank and CPS(K)) and declared the recruitment null and void ab initio, quashed it by certiorari, and ordered a fresh competitive recruitment. No departure was found for Chief Planning Officer (a distinct strategic planning role) or Human Resource Manager (silent in the Scheme). The claim on a substantive Council Chair failed, quorate Councils may appoint acting chairs for meetings. The Union was denied costs. Judgment delivered virtually on 10 May 2023 by Radido Stephen, J.

Key legal issues

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01

Whether the exhaustion doctrine barred the Petition in favour of the recognition agreement's grievance procedure

Holding

The dispute transcended a trade dispute and fell within the exception to the exhaustion doctrine

Reasoning

The recruitment was open to non-members and did not concern terms and conditions of employment of employees, so it was not an individual or collective grievance under the recognition agreement. As a public institution, the University was bound by constitutional recruitment tenets, placing the dispute within the exception recognised in Ramogi.

p. 4
02

Whether the Petition, not disclosing constitutional issues, should be struck out

Holding

The Court agreed the Petition raised no constitutional issues but declined to decline jurisdiction, treating costs as the appropriate remedy

Reasoning

The gravamen concerned interpretation and application of the Career Progression Guidelines rather than the Constitution. The Court nonetheless considered the merits rather than striking out the Petition, holding that an appropriate costs order would suffice depending on the outcome.

p. 4
03

Whether the advertisement complied with the Scheme of Service for the Registrar positions

Holding

The advertisements for the three Registrar positions omitted mandatory qualifications (Associate Professor rank, CPS(K)), rendering the process null and void

Reasoning

The Scheme of Service codified eligibility criteria, which became the official requirements and notice to all. The vacancy call for Registrar (Academic Affairs) and Registrar (Research) omitted the Associate Professor rank requirement, and the call for Registrar (Administration) omitted the CPS(K) requirement. The advertisement fell short.

p. 6
04

Whether the Chief Planning Officer and Human Resource Manager advertisements were unlawful

Holding

No departure from the Scheme of Service was found; the Chief Planning Officer position advertised was distinct from that in the Scheme, and the Scheme is silent on Human Resource Manager

Reasoning

The advertised Chief Planning Officer role concerned strategic planning, not physical planning requiring registration with the Physical Planners Registration Board, and there was no evidence the position was unlawfully established. The Scheme has no provision for a Human Resource Manager, so the University could not be faulted for setting its own qualifications, subject to the HR Management Professionals Act.

p. 7

Legal principles established

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  • Once an institution codifies eligibility criteria in a Scheme of Service, it must administer or formally amend it and cannot tailor requirements whimsically or on an ad hoc basis
  • Failure by an employer to fulfil its own responsibility to revise a Scheme of Service cannot justify recruitment outside its confines

Court orders

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  1. 1.A declaration that the recruitment process through the advertisement on or about 17th February 2023 for the positions of Registrar (Administration, Human Resource & Central Services), Registrar (Academic Affairs) and Registrar (Research, Extension, Innovation & Resource Mobilisation) failed to comply with the Kisii University Career Progression Guidelines (Scheme of Service) 2014 hence null and void ab initio
  2. 2.An order of certiorari quashing the recruitment process through the advertisement on or about 17th February 2023 for failing to comply with the Scheme of Service 2014
  3. 3.An order compelling the Respondent to forthwith restart the recruitment process for the 3 positions in a competitive, transparent, fair and open manner with due compliance to all constitutional, statutory and legal provisions
  4. 4.The Union is denied costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 3(1), 10, 27, 41, 47, 72(3)(b), 232
  • Human Resource Management Professionals Actsection 29 (2012 Act)
  • Public Service Commission Actsection 34
  • Public Service (Values and Principles) Act, 2015section 10
  • Kisii University Career Progression Guidelines (Scheme of Service), 2014Preamble/Introduction
  • Kisii University Statutes, 2020Statute XI; Statute XX paragraph 6
  • Labour Relations Act
  • Employment and Labour Relations Court (Procedure) Rules, 2016
  • Universities Act

Cases cited (1)

  • William Odhiambo Ramogi & 3 Ors v Attorney General & 4 Ors; Muslims for Human Rights & 2 Ors (Interested Parties)
    (2020) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and the Constitution (employment and labour relations dispute)

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 v Kisii University (Petition E007 of 2023) [2023] KEELRC 1127 (KLR)", Case Analysis (2023). Petition (ELRC, Kisumu), filed 9 March 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1127/eng@2023-05-10

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