Egerton University v Universities’ Academic Staff Union & another (Employment and Labour Relations Cause E008 of 2023) [2023] KEELRC 1298 (KLR)
The bottom line
#A Kenyan court blocked a university lecturers' strike because the union branch skipped mandatory conciliation and lacked authority to call it.
What this practically means
#Executive summary
#Key legal issues
#Whether the strike notice dated January 13, 2023 was lawful and protected
The notice was irregular and unprotected because the trade dispute had not been referred to conciliation as required by section 78(1)(e) of the Labour Relations Act; conciliation had proceeded only in Cause No. 16 of 2022, which was a separate cause that remained res judicata.
Section 76 sets out the parameters for calling a strike and section 78(1) prohibits a strike where the dispute was not referred for conciliation. The court noted the law envisages conciliation before industrial action. In this case conciliation had proceeded in Cause No. 16 of 2022, which was found to remain res judicata after execution and fines. The present cause E008 of 2023 was a new cause, and a strike could only issue after referral for conciliation under the Act or the parties' CBA, which had not occurred, rendering the notice irregular and unprotected.
Whether the 2nd respondent had locus to issue a strike notice
The 2nd respondent chapter lacked locus and mandate to call for industrial action because Article 15 of the UASU Constitution, couched in mandatory terms, vests the power to call industrial action in the National Executive Committee with approval of the National Delegates Council.
While a registered branch retains capacity to run its own affairs (as held in NKR JR E004 of 2021), that capacity must be exercised within the union's constitution, which expressly vests the mandate to call industrial action in the NEC, communicated by the Secretary General. The chapter Secretary General's powers under Article 20(c) do not extend to calling a strike, so the notice was issued without authority.
What orders the court could grant
The court found for the claimant as prayed, declaring the industrial action unprotected, unlawful, illegal, null and void and restraining the respondents from proceeding with it pending determination of the cause.
Having found the strike notice both procedurally defective under the Labour Relations Act and issued without constitutional authority within the union, the court granted the declaratory and restraining relief sought by the claimant, protecting the university's operations pending full hearing, with costs reserved to the cause.
Legal principles established
#- A strike issued without prior referral of the trade dispute to conciliation under section 78(1)(e) of the Labour Relations Act is irregular and unprotected.
- A branch of a trade union has no locus to call a national or chapter-wide industrial action where the union's constitution vests that mandate in the National Executive Committee.
Court orders
#- 1.Declared the industrial action issued by the 2nd respondent vide a letter dated 13th January 2023 set to commence on February 6, 2023 unprotected, unlawful, illegal, null and void
- 2.Granted orders restraining the respondents and/or their agents or servants howsoever from proceeding with industrial action as issued by the 2nd respondent dated January 13, 2023 pending the hearing and determination of this cause or until further orders of the court
- 3.Costs in the cause
- Jurisdiction invoked
- Articles 50 & 159 of the Constitution of Kenya 2010; section 3 of the Employment and Labour Relations Court Act, 2011; rule 17 of the Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Egerton University v Universities’ Academic Staff Union & another (Employment and Labour Relations Cause E008 of 2023) [2023] KEELRC 1298 (KLR)", Case Analysis (2023). ELRC Cause No E008 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1298/eng@2023-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.