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ELRCDismissedPetition dated 11th October, 2022 (Nakuru ELRC)· [2023] KEELRC 2616 (KLR)

Egerton University v Kenya Universities Staff Union & another (Petition 11 of 2022) [2023] KEELRC 2616 (KLR)

Employment and Labour Relations Court
26 October 2023
DNDavid Nderitu
5,393 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled Egerton University couldn't stop a staff strike because it unilaterally cut salaries and failed to negotiate in good faith.

What this practically means

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Executive summary

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Egerton University petitioned the Employment and Labour Relations Court at Nakuru seeking declarations that a strike called by KUSU and its branch secretary for 12th October 2022 was unprotected and illegal, injunctions restraining it, an order for conciliation, and leave to implement the terms of a 29th September 2022 meeting and to discipline strikers, on the basis that it lacked funds due to inadequate Government capitation and that the strike notice was issued by an official without locus. The respondents countered that the strike notice complied with Article 41(2)(d) of the Constitution and Section 74 of the Labour Relations Act, and that the University had for years unilaterally varied terms of employment, paid only 60% of salaries, failed to remit dues, and ignored negotiation efforts. The court found the strike notice expired following interim orders issued on 12th October 2022, but proceeded to determine the issues given the longstanding industrial unrest. It held the notice was lawful and properly authorised, that the University's unilateral payment of 60% salaries and variation of pension and medical benefits was unconstitutional, and that the University lacked good faith, having waited until the eve of the strike to file suit and made no efforts at resolution. Lack of capitation did not excuse it. The notice of motion was dismissed with costs, interim orders vacated, and the University directed to convene negotiations and conciliation with all stakeholders including the GOK and file a report of any settlement within sixty days, failing which the respondents could take lawful action. Mention was set for 5th February 2024.

Key legal issues

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01

Whether the strike notice issued by the 2nd respondent was lawful and procedural

Holding

The notice was lawful; it complied with Article 41(2)(d) and Section 74 of the Labour Relations Act, gave seven days' notice, and was copied to the Cabinet Secretary for education

Reasoning

The respondents issued a seven days' notice copied to the Cabinet Secretary and the County Labour Officer. There was no allegation of improper service and no evidence that the 1st respondent did not authorise the 2nd respondent to issue the notice. The delegation of authority was recorded on 29th September, 2022. The court found the respondents had exhausted engagement efforts before resorting to strike as a last resort.

p. 9
02

Whether the petitioner's unilateral payment of 60% of salaries and variation of terms was lawful

Holding

The unilateral reduction of salaries to 60% and variation of pension, medical benefits and other terms was unconstitutional and unlawful

Reasoning

Unless the parties had agreed an interim arrangement for piece-meal payment - of which there was no evidence - an employer cannot unilaterally vary terms and conditions of employment without concurrence of the employees or their union. Such unilateral action grossly violated the employees' rights to fair remuneration and reasonable working conditions under Article 41 of the Constitution.

p. 9
03

Whether the petitioner acted in good faith and time in approaching the court

Holding

The petitioner did not act in good faith, waiting until one day before the strike to file suit and showing no effort to resolve the dispute

Reasoning

Served with the strike notice on 3rd October 2022, the petitioner only came to court on 11th October 2022, the day before the strike. It should instead have engaged the respondents during the seven days of the notice. There was no evidence of any efforts by the petitioner to resolve the issues, and it was non-committal in negotiations because it could not implement any outcome for lack of funds.

p. 9
04

Whether the petitioner's lack of funds excuses non-payment and justifies restraining a strike

Holding

Lack of GOK capitation does not render the petitioner helpless; lawful avenues exist and the strike could not be restrained on that basis

Reasoning

The court held that the petitioner is not helpless even where GOK capitation fails, and pointed to lawful avenues including negotiating with all stakeholders including the GOK, and exploring redundancy under Section 40 of the Employment Act. It is the petitioner's province, not the respondents', to engage the GOK for funds.

p. 9

Legal principles established

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  • It is unconstitutional and unlawful for an employer to keep employees on the payroll without paying the entire agreed remuneration; terms of employment cannot be varied unilaterally without employees' concurrence
  • An employer who has not demonstrated good faith cannot invoke the dispute-resolution provisions of the Labour Relations Act to stop a lawful strike

Court orders

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  1. 1.The Applicant's notice of motion dated 11th October, 2022 is dismissed with costs to the respondents
  2. 2.The interim orders issued on 12th October, 2022 are vacated
  3. 3.The petitioner is ordered and directed to call for negotiations and or conciliation meetings including all stakeholders, including the GOK, and file a report on the settlement reached within sixty (60) days
  4. 4.In default, the respondents shall be free to take the next appropriate lawful action
  5. 5.Mention on 5th February, 2024 to confirm status

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 22, 23, 27, 28, 41, 47, 73
  • Labour Relations ActSections 74, 76, 77, 78, 79, 80
  • Employment ActSections 40, 46
  • Employment and Labour Relations Court Act

Cases cited (2)

  • Teachers Service Commission v Kenya National Union of Teachers & Others (2015) eKLR
    (2015) eKLR
  • Joash Alubale Jacob V Mega Pack Limited (2019) eKLR
    (2019) eKLR
Jurisdiction invoked
Articles 22 & 23(3) of the Constitution of Kenya, 2010

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, "Egerton University v Kenya Universities Staff Union & another (Petition 11 of 2022) [2023] KEELRC 2616 (KLR)", Case Analysis (2023). Petition dated 11th October, 2022 (Nakuru ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2616/eng@2023-10-25

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