Universities Academic Staff Union (Pwani University Chapter) v Pwani University; Universities Academic Staff Union (UASU) (Interested Party) (Petition E004 of 2023) [2023] KEELRC 2377 (KLR)
The bottom line
#Kenya's Employment Court confirmed that a Collective Bargaining Agreement cannot be enforced until it is registered, so Pwani University's retirement notices stood.
What this practically means
#Executive summary
#Key legal issues
#Enforceability of the unregistered CBA dated 10 May 2017 setting retirement age at 75 years
The CBA cannot be enforced until registered by the Court; members remain bound by existing terms of employment including retirement ages in their appointment letters
Section 59(5) of the LRA is couched in mandatory terms: a collective agreement becomes enforceable upon registration and effective from the date agreed. Although SRC gave a 'no objection' response and the parties executed the CBA, registration remains pending in Nairobi ELRC CBA No. E088 of 2023. Until that process concludes, the petitioner cannot enforce the 75-year retirement age, and the retirement notices issued conformed to members' letters of appointment.
Alleged discriminatory treatment in promotions to Assistant Lecturer
Discrimination was not proved; the petitioner failed to demonstrate unjustifiable differential treatment or arbitrary selection
Article 27 and Section 5(3) of the Employment Act prohibit workplace discrimination, but a petitioner must demonstrate differential treatment with no reasonable distinction. Advising employees to apply for higher positions is not advice to resign, and failure to apply for fear of losing permanent terms does not infer discrimination. The employer's prerogative applies unless selection is unreasonable, arbitrary or for an illegitimate purpose, per Mohammed Abduba Dida v Debate Media Limited.
Whether the remedies sought should issue
The petition and the Notice of Motion dated 12 June 2023 are without merit and dismissed in their entirety
Having found the CBA unenforceable for want of registration and the discrimination claim unsupported by particulars, none of the declarations, quashing orders or promotion orders could issue. Benefits accrued under interim orders were preserved only until judgment, without victimisation under Section 46(h) of the Employment Act, and each party was to bear its own costs.
Legal principles established
#- A collective agreement only becomes enforceable and effective upon registration by the Court, in mandatory terms under Section 59(5) of the LRA
- Mere differentiation or unequal treatment does not per se amount to discrimination prohibited under Article 27 of the Constitution; unjustifiable differential treatment must be shown
- Promotion in employment is not automatic; the employer has the prerogative to determine promotion based on its policy, procedures and practice absent arbitrary or illegitimate differentiation
Court orders
#- 1.The petition and the Notice of Motion dated 12 June 2023 are dismissed in their entirety
- 2.Each party to bear own costs
- 3.Benefits accrued to members for time served beyond retirement notices and labours offered conclude with the judgment without victimisation in terms of Section 46(h) of the Employment Act
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and Article 162(2) of the Constitution (implied; not expressly pleaded in the extract)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Universities Academic Staff Union (Pwani University Chapter) v Pwani University; Universities Academic Staff Union (UASU) (Interested Party) (Petition E004 of 2023) [2023] KEELRC 2377 (KLR)", Case Analysis (2023). Petition dated 12 June 2023 (Mombasa ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2377/eng@2023-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.