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ELRCDismissedPetition dated 12 June 2023 (Mombasa ELRC)· [2023] KEELRC 2377 (KLR)

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)

Employment and Labour Relations Court
28 September 2023
3,630 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Universities Academic Staff Union (UASU) petitioned the Employment and Labour Relations Court at Mombasa on behalf of five members of Pwani University staff, seeking quashing of retirement notices setting retirement at 60 or 70 years rather than the 75 years allegedly agreed in a Collective Bargaining Agreement dated 10 May 2017, declarations of discriminatory treatment in promotions, orders promoting three named members to Assistant Lecturer with backdating, and costs. The respondent countered that the 2017 CBA was unregistered and thus unenforceable under Section 59(5) of the Labour Relations Act, that retirement ages followed the members' letters of appointment as teaching or non-teaching staff, and that the discrimination claims lacked proof. The interested party supported the petitioner, relying on the Machakos University case invalidating the Harmonised Criteria that abolished the Assistant Lecturer post. The court, M. Mbarũ J, framed three issues: whether the retirement notices violated the CBA, whether promotions were discriminatory, and whether remedies should issue. Holding that Section 59(5) of the LRA is mandatory, the court found the unregistered CBA unenforceable despite SRC approval, the registration still pending in Nairobi ELRC CBA No. E088 of 2023. The retirement notices were held procedural and consistent with appointment letters. On discrimination, applying Haki Na Sheria Initiative and Mohammed Abduba Dida, the court held that mere differentiation is not discrimination and the petitioner had made general assertions without particulars. The petition and Notice of Motion dated 12 June 2023 were dismissed in their entirety, benefits accrued under interim orders concluded without victimisation under Section 46(h) of the Employment Act, and each party was ordered to bear its own costs.

Key legal issues

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01

Enforceability of the unregistered CBA dated 10 May 2017 setting retirement age at 75 years

Holding

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

Reasoning

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.

p. 6
02

Alleged discriminatory treatment in promotions to Assistant Lecturer

Holding

Discrimination was not proved; the petitioner failed to demonstrate unjustifiable differential treatment or arbitrary selection

Reasoning

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.

p. 6
03

Whether the remedies sought should issue

Holding

The petition and the Notice of Motion dated 12 June 2023 are without merit and dismissed in their entirety

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The petition and the Notice of Motion dated 12 June 2023 are dismissed in their entirety
  2. 2.Each party to bear own costs
  3. 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

Authorities

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Legislation

  • Constitution of KenyaArticle 27
  • Constitution of KenyaArticle 41(1)
  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 50
  • Employment Act, 2007Section 5 (including 5(3))
  • Employment Act, 2007Section 10(5)
  • Employment Act, 2007Section 46(h)
  • Labour Relations Act, 2007Section 59(5)

Cases cited (10)

  • Royal Ngao Holdings Limited v N.K. Brothers Limited
    [2020] eKLR
  • Said Ndege v Steel Makers Ltd
    [2014] eKLR
  • Republic v Kenya Revenue Authority ex parte Cooper K-Brands Limited
    [2016] eKLR
  • Republic v Judicial Service Commission & 2 others ex parte Erastus M. Githinji
    [2019] eKLR
  • Kenafric Industries Limited v Bakery Confectionary Food manufacturing and Allied Workers Union
    [2014] eKLR
  • Inter Public Universities Councils Consultative Forum of the Federation of Kenya Employers v KUDHEIHA, UASU & KUSU
    [2020] eKLR
  • Universities Academic Staff Union v Machakos University & Another
    [2019] eKLR
  • Haki Na Sheria Initiative v Inspector General of Police & 3 others
    [2020] eKLR
  • Mohammed Abduba Dida vs Debate Media Limited & another
    [2018] eKLR
  • Social Service League, M.P. Shah Hospital v Kenya Union of Domestic, Hotels, Educational Institutions and Allied Workers
    CBA 103 of 2018
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

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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, "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.