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ELRCDismissedNot stated in the judgment as provided· [2023] KEELRC 2358 (KLR)

Kirinyaga University UASU Chapter v Kirinyaga University & another (Petition E031 of 2023) [2023] KEELRC 2358 (KLR)

Employment and Labour Relations Court
5 October 2023
2,125 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Petitioner, a UASU chapter representing academic staff at Kirinyaga University, petitioned against the Academic Workload Policy issued by the 1st Respondent in 2021, contending it was formulated and implemented without consultation as required by the Recognition Agreement. Together with the Petition it sought conservatory orders restraining further implementation of the policy. The Respondents opposed, arguing the policy did not alter individual contracts of employment, that the process was consultative through Faculty Heads, that the dispute was a private law matter wrongly framed as a constitutional petition, and that the application was overtaken by events since the policy had been effected in 2021. The court found the Petitioner had a prima facie case: as the representatives of academic staff it was a stakeholder that ought to have been consulted, and the Respondents produced no evidence negating non-consultation. The court also held the duty to consult is firmly entrenched in Kenya's legal architecture, and that staying within the 40-hour weekly workload limit did not justify failing to consult. However, applying the Giella v Cassman Brown principles, the Petitioner failed to address the critical question of the irreparable damage its members would suffer if the orders were not granted, distinguishing the Tum Chapter case where that ingredient was proved. On whether an injunction can restrain an already-implemented policy, the court noted that since implementation was a continuing exercise, stopping continued implementation was arguable. The application was nonetheless declined for failure to demonstrate irreparable damage, with costs granted to the Respondents.

Key legal issues

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01

Duty to consult on the Academic Workload Policy

Holding

The Petitioner, as the representative trade union chapter, was a stakeholder who ought to have been consulted on the impugned policy; the Respondents did not disprove the assertion that it was not consulted

Reasoning

The court found the policy was issued in 2021/2022 and the Petitioner objected, claiming lack of consultation. The Respondents produced no evidence negating non-consultation, only evidence of engagement through Faculty Heads. The court held consultation was desirable regardless of whether the workload stayed within the 40-hour weekly limit, since increased workload carries its own inconveniences.

p. 3
02

Prima facie case

Holding

The Petitioner established a prima facie case, since its claim was not frivolous

Reasoning

Applying the test that a prima facie case need not ultimately succeed but must not be frivolous, the court was satisfied on the preliminary evidence - the policy, the objection letters and the absence of formal response or follow-up consultations - that the Petitioner's case was arguable.

p. 3
03

Irreparable damage

Holding

The Petitioner failed to demonstrate irreparable damage, so conservatory orders could not issue despite the prima facie case

Reasoning

Unlike in the Tum Chapter case where the applicants addressed the damage flowing from non-issuance of orders, the Petitioner here said nothing on the nature of damage its members would suffer. The sequence of the Giella principles requires that an injunction not issue where the damage is compensable or not shown to be irreparable.

p. 4
04

Injunction against an already-implemented policy

Holding

Although courts generally cannot injunct what has already happened, where implementation is a continuing exercise the court may arguably stop its continued implementation

Reasoning

The court noted divergent authority: some pronouncements suggest a court cannot injunct an event that has occurred (Joel Kiprotich Koskei), while the Tum Chapter case granted such orders, upheld on appeal. Relying on Habiba Ali Mursal, the court found that because implementation of the workload policy was continuing, stopping continued implementation was arguable. However, this could not cure the failure to prove irreparable damage.

p. 5

Legal principles established

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  • The duty to consult on decisions likely to affect a person's rights and obligations is firmly entrenched in Kenya's legal architecture
  • An applicant for interim injunction must satisfy all the Giella v Cassman Brown conditions, including irreparable damage; a prima facie case alone is insufficient
  • An injunction restrains threatened or ongoing conduct, not what has already occurred; where implementation is a continuing exercise, an order to stop continued implementation may issue

Court orders

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  1. 1.The application for conservatory injunctive orders is declined
  2. 2.Costs of the application are granted to the Respondents

Authorities

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Legislation

  • Employment Actsection 10
  • Civil Procedure Actsection 63
  • Civil Procedure RulesOrder 40 (previously 39)
  • Constitution of KenyaArticle 23
  • ELRC Procedure RulesRule 28(3)

Cases cited (6)

  • Kevin K. Mwiti & others v Kenya School of Law & others
    [2015] eKLR
  • Universities Academic Staff Union (UASU) Tum Chapter v Technical University of Mombasa
    [2019] eKLR
  • Giella v Cassman Brown & Co Ltd
    [1973] EA
  • Director of Public Prosecutions v Justus Mwendwa Kathenge & 2 others
    [2016] eKLR
  • Joel Kiprotich Koskei & 5 Others v Kenya Forest Service & 2 Others
    [2013] eKLR
  • Habiba Ali Mursal & 4 others v Mariam Noor Abdi
    [2018] eKLR
Jurisdiction invoked
Constitutional petition under the Bill of Rights; Article 23 of the Constitution identified as the basis for injunctive relief

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, "Kirinyaga University UASU Chapter v Kirinyaga University & another (Petition E031 of 2023) [2023] KEELRC 2358 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2358/eng@2023-10-05

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