Kirinyaga University UASU Chapter v Kirinyaga University & another (Petition E031 of 2023) [2023] KEELRC 2358 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Duty to consult on the Academic Workload Policy
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
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.
Prima facie case
The Petitioner established a prima facie case, since its claim was not frivolous
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.
Irreparable damage
The Petitioner failed to demonstrate irreparable damage, so conservatory orders could not issue despite the prima facie case
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.
Injunction against an already-implemented policy
Although courts generally cannot injunct what has already happened, where implementation is a continuing exercise the court may arguably stop its continued implementation
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.
Legal principles established
#- 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
#- 1.The application for conservatory injunctive orders is declined
- 2.Costs of the application are granted to the Respondents
- Jurisdiction invoked
- Constitutional petition under the Bill of Rights; Article 23 of the Constitution identified as the basis for injunctive relief
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.